Fitzmaurice 2003

THE IDENTIFICATION AND CHARACTER OF TREATIES
AND TREATY OBLIGATIONS BETWEEN STATES IN

INTERNATIONAL LAW*
By MALGOSIA FITZMAURICE:\:
I INTRODUCTION
Downloaded from http://bybil.oxfordjournals.org/ at University of Sheffield on September 11, 2015

I The Problem
The Vienna Convention on the Law of Treaties of 1969 (hereinafter
the 'VCLT') contains an apparently simple definition of a treaty. Article
2, paragraph 1 (a) of the VCLT defines a treaty as:
an international agreement concluded between States in written form and gov-

erned by international law, whether embodied in a single instrument or in two or
more related instruments and whatever its particular designation.
Nonetheless, the concept of the treaty-what constitutes a treaty and
what is the nature of a treaty obligation-is one of the most intractable
problems in the law of treaties. According to Judge Jessup, '[t]he notion
that there is a clear and ordinary meaning of the word "treaty" is a
mirage'. 1 The problem has been the subject of much writing," and has
been considered by the International Court of Justice in a number of
cases. It has been remarked that although 'the definition of an interna-
tional treaty seems at first sight to be a purely academic question, judicial
experience shows that the determination of whether a certain instrument
constitutes a treaty has important practical consequences'i ' As will be
seen, this view finds support in the practice of the Court.
One reason for the difficulty is the development of various new forms
of interstate relations and of new branches of international law, such
as international environmental law. These have seen the emergence of
multifaceted forms of co-operation which have, in turn, produced new
forms of international instruments such as so-called 'soft-law' instru-
ments, or instruments (often called 'agreements') which are not intended
"" © Malgosia Fitzmaurice, 2003.

~ Professor of Public International Law, Department of Law, Queen Mary, University of
London.
I Separate Opinion, Judge Jessup in the South West Africa cases (Ethiopia v South Africa; Liberia v
South Africa (Preliminary Objections) Judgment of 21 December 1962) (1962) ICJ Reports 402.
Similarly G. J H. van Hoof, Rethinking Sources of International Law (Kluwer, 1983) p. 117.
:z See, for example, the valuable and thought-provoking recent study of J Klabbers, The Concept
of Treaty in International Law (Kluwer Law International, 1996).
3 J. de Arechaga, 'International Law in the Past Third Century', 159 Recueil des Cours
(197 8- 1) p. 35·
142 THE IDENTIFICATION AND CHARACTER OF TREATIES
to be legally binding at all but which have a certain political or moral

force. This diversified co-operation between States has resulted in
changes in the form of treaties, including the exponential growth of
treaties in 'simplified form'. 4
This essay focuses on treaties concluded between States, and asks
whether the formal definition of a treaty in the VCLT is adequate, given
the wide variety of instruments used in modern international relations. It
considers both 'core' instances of the concept of the treaty, and also certain
developments in the field of international relations, which test the borders

of that concept. As a background to these issues, it is necessary to look also
at the formal aspects of the concept, which are embodied in the positive
rules derived from the definition of treaty in the VCLT. 5 In short, it is
necessary to analyse both in terms of form and substance those consensual
relationships between States that create rights and obligations.
On the other hand, acts that generate obligations but are unilateral in
nature, or acts that are of a hybrid character (such as optional clauses in
the system of the IC] compulsory jurisdiction), will not be dealt with,
nor will the problem of treaties concluded by international organizations.
Although the provisions of the 1986 Vienna Convention on the Law of
Treaties between States and International Organizations or Between
International Organizations exhibit many similarities to those of the
VCLT, there are certain legal issues that are specific to the treaty-making
of international organizations (such as the issue of juridical transparency
of organizations) and that merit separate study." The advent of interna-
tional organizations has resulted in a very diversified practice that does
not fall fully within the ambit of the treaty-making between States.
We first consider (in II below) the definition contained in the VCLT,
and in particular its provisions concerning formal aspects of a treaty and
its inadequacies in relation to substantive aspects. These matters were the
subject of consideration by the IC] and its predecessor, the PCI], in a
number of important decisions. In I I I below, we consider a number of
more recent developments in international law and international rela-
tions, which illuminate the limits of the concept of the treaty.
The jurisprudence of the IC] is to be viewed with caution. A principal
focus for the Court is whether the 'agreement' in question suffices to estab-
lish its jurisdiction, and it can be difficult to distinguish between the
Court's observations concerning the character of treaties in general and
4 See e.g. J. E. S. Fawcett, 'The Legal Character of International Agreements', 30 this Year Book
(1953) pp. 38 1-400.
5 See D. P. Myers, 'The Names and Scope of Treaties', 51 AJIL (1957) pp. 574-605.
6 See e.g. the excellent study of C. Brolmann, 'The Vienna Convention on the Law of Treaties:
The History of Draft Article 36 BIS', in J. Klabbers and R. Lefeber (eds.), Essays on the Law of
Treaties, A Collection of Essays in Honour of Bert Vierdag (Martinus Njihoff Publishers, 1998)
pp. 121-43·
AND TREATY OBLIGATIONS BETWEEN STATES 143
those regarding the definition of agreement of the parties for the purposes
of jurisdiction. The Aegean Sea' and the Qatar/Bahrain cases" are good
examples. The ICJ itself has adopted a pragmatic approach to this matter."
2 Binding Agreements in Legal Systems-General Remarks

In principle, treaty obligations comprise those international obligations
that arise directly by operation of the general principle of law embodied
in the well-known maxim pacta sunt servanda. This principle-that
agreements are to be upheld, or supported, by the law-is undoubtedly

one of the 'general principles of law recognized by civilized nations'
referred to in Article 38(1) of the Statute of the ICj. The general princi-
ple of the legally binding agreement exists in all major legal systems in
broadly similar form; and as a result similar problems are encountered as
to what constitutes a legally binding agreement. No legal system upholds
all agreements. A detailed comparative study of the various methods used
by legal systems to distinguish between those agreements that are upheld
by the law and those that are not is beyond the scope of the present essay.
However, as a background, it may prove useful to consider certain par-
ticular features of international law in this respect.
(a) The concept of international legal obligation
Treaties are one of the sources that give rise to international legal obli-
gations. In its commentary to the Articles on Responsibility of States for
Internationally Wrongful Acts of 2001, the International Law Commission
explained that:
[i]nternational obligations may be established by a customary rule of interna-
tionallaw, by a treaty or by general principles applicable within the international
legal order. States may assume international obligations by a unilateral act. An
international obligation may arise from provisions stipulated in a treaty (a deci-
sion of an international organ of an international organisation competent on the
matter, a judgement given between two States by the International Court of
7 Aegean Sea Continental Shelf case (Greece v Turkey) (Jurisdiction of the Court) Judgment of
19 December 1978 (1978) ICJ Reports 4,41-4, paras. 101-8.
8 Maritime Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v Bahrain)
(Jurisdiction and Admissibility) Judgment of I July 1994 (1994) ICJ Reports I 12, 120-2, paras.
21-30; see J. Klabbers, 'Qatar v. Bahrain: the Concept of a "Treaty" in International Law', 33 Archiv
des Viilkerrechts (1995) pp. 361-76; S. Rosenne, 'The Qatar/Bahrain case, What is a Treaty? A
Framework Agreement and the Seising of the Court', 8 Leiden Journal of International Law (1995)
pp. 161-82; see also Case Concerning Maritime Delimitation and Territorial Question Between Qatar
and Bahrain (Qatar v Bahrain) (Jurisdiction and Admissibility) Judgment of IS February 1995
(1995) ICJ Reports 4; C. Chinkin, 'A Mirage in the Sand? Distinguishing Binding and Non-Binding
Relations Between States', 10 Leiden Journal of International Law (1997) pp. 223-49; E. Vierdag,
'The International Court of Justice and the Law of Treaties', in V. Lowe and M. Fitzmaurice (eds.),
Fifty Years of the International Court of Justice (Cambridge University Press, 1996) p. 145 at p. 153·
9 For example, in the Aegean Sea case, the Court, having satisfied itself as to the lack of jurisdic-
tion, stated that ' ... the Court is not concerned, nor is it competent, to pronounce upon any other
implications which that Communique may have in the context of the present dispute' (above,
n. 7) p. 44, para. 108.
Justice or another tribunal, etc.) ... Moreover these various grounds of obliga-
tion interact with each other ... Treaties, especially multilateral treaties, can con-
tribute to the formation of general international law; customary law may assist
in the interpretation of treaties; an obligation contained in a treaty may be applic-
able to a State by reason of its unilateral act, and so on.!"
This lack of differentiation as regards the legal origin of an international
obligation is evident in cases of a breach of such obligation. As Article 12 of
the ILC's Articles states: 'There is a breach of an international obligation by
a State when an act of that State is not in conformity with what is required of

it by that obligation, regardless of its origin or character'. I I Treaties, as a
source of international obligations and of responsibility arising from a breach
of such obligations, are not distinct from other sources of international
law; breaches of treaty entail the general consequences that derive from
the law of State responsibility, in the absence of any specific provision to
the contrary.
(b) Absence in international law of tools for analysis of

the substantive nature of agreements
Municipal legal systems make use of a number of different analytical
tools that assist in determining the substantive distinctions between those
agreements that are upheld by the law and those that are not. For instance,
there is the concept of the 'nominative' system of law of contract, in which
10 The Report of the International Law Commission, on its fifty-third Session, 23 April-I june
and 2 july-u o August (2001), Chapter IV, 'State Responsibility', p.I26, General Assembly, Official
Records, Fifty-fifth Session, Supplement No. Io(A/56/IO), http://www.un.org/law/ilc/report.htm.
The Commission gives several examples of such various sources of international obligations. France
undertook by a unilateral act not to engage in further atmospheric nuclear testing: Nuclear Tests
cases (Australia v France) and (New Zealand v France) judgments of 20 December 1974 (1974) ICj
Reports 253, 267-72, paras. 42-60 and 457, 472-7, paras 45-63 respectively. See also Request for
an Examination of the Situation in Accordance with Paragraph 63 of the Court's Judgement of
20 December I974 in the Nuclear Tests (New Zealand v France) Order of 22 September 1995 (1995) ICj
Reports 288, 305, paras. 60-61. See also, Rainbow Warrior (New Zealand v France) (1990)
UNRIAA, vol. XX, 217, 25 1.The Tribunal said that: '[a]ny violation by a State of any obligation, of
whatever origin, gives rise to State responsibility and consequently, to the duty of reparation'; Case
Concerning Gabcikovo-Nagymaros Project (Hungary and Slovakia) judgment of 25 September 1997
(1997) ICj Reports 7, 38, para. 47: it is 'well established that, when a State has committed an inter-
nationally wrongful act, its international responsibility is likely to be involved whatever the nature of
the obligation it has failed to respect'. See also J. Crawford, The International Law Commission's
Articles on State Responsibility-Introduction, Text and Commentaries (Cambridge University
Press, 2002), on content, forms and degrees of international responsibility, see pp. 6-8. On the inter-
action between treaties and international customary law, see 'Statement on Principles Applicable
to the Formation of General Customary International Law, Final Report of the Committee
on Formation of Customary Law (General) International Law (Report by M. Mendelson and
R. Mullerson) International Law Association, Sixty-Ninth (London) Conference (2000),
pp. 753-65; R. Higgins, Problems and Process, International Law and How We Use It (Clarendon
Press, 1994) pp. 32-8.
I I Responsibility of States for Internationally Wrongful Acts, adopted by the International Law
Commission, on 9 August 2001, see Official Records of the United Nations General Assembly,
Fifty-sixth Session, Supplement. No. 10, and corrigendum (A/56/IO and Corr.r ), See also:
Resolution of the General Assembly, A/RES/56/83, Fifty-sixth session, item 162.
only particular 'named' types of contract, each of them defined, are upheld.
This system was fundamental in Roman law and remains a significant
characteristic of the law of contracts in French law. Again, both civil and
common law systems have greatly developed the analysis of the substan-
tive aspects of the formation of legally binding agreements through the
concept of offer and acceptance (as well as the concept of consideration in
common law), and both have also developed the concept of necessity for
certainty in the subject matter of contracts (in French law, for instance, in
the form of the requirement for objet; and in common law in the concept

of contracts, or clauses in contracts, being void for uncertainty).
International law, by comparison, makes very little use of such analyti-
cal tools, in effect basing the substantive distinction between international
agreements that are binding and those that are not almost entirely on the
'intention' of the parties, no doubt in part as a legacy of its 'voluntarist'
origins. As will be seen below, this intention is treated from an objective
point of view, based on the apparent or external facts of the case rather
than on the subjective state of mind of the parties (or their representa-
tives). In deciding this issue on the facts, international law does in fact take
into account, albeit indirectly, some of the factors referred to above, such
as certainty of the subject matter. Nevertheless, the international law test
of intention is more elusive and gives rise to greater problems of proof
than do more specific tests of other legal systems.
(c) Particular characteristics of the international legal system

Notwithstanding similarities between the law of treaties in international
law and that of contracts in municipal law systems, it is important to bear
in mind some fundamental differences between legal systems operating on
the international and on the national planes, which are relevant to the
distinction between binding and non-binding international agreements.
The first is the relative importance in international relations of struc-
tured, relatively formal, and often continuous relations between States,
which take many forms ranging from relations between government
departments, through diplomatic relations, to meetings of heads of State,
and which are by and large not intended in themselves to have, and do
not have, specific legal consequences. This factor in international rela-
tions, which has led to the increased use and importance of non-binding
informal instruments, has no real equivalent at the national level. This
point is considered further in I I I below.
A second factor operating at the international level is the use made, in
the absence of any international legislative body, of agreements to achieve
objectives that at the national level would generally be achieved through
legislation. This has given rise, among other things, to the growing impor-
tance of international instruments that are negotiated and drafted in ways
virtually indistinguishable from binding treaty instruments but are not
intended to be, and are not, legally binding. They may eventually become
binding, either through their influence on the formation of customary

international law or through their eventual incorporation into a binding
treaty; and they are often intended to do so. These are often, and perhaps
confusingly, called 'soft-law' instruments. They also are further discussed
in III below.
A third difference, of a more practical nature, is the sheer difficulty and
expense of negotiating and concluding international agreements especially
at the multilateral level; this is an additional element in States' preferences
for informal agreements and the use of 'soft-law' instruments.

3 The Vienna Convention and the Concept of Treaties
It is impossible to consider any aspect of the law of treaties without ref-
erence to the VCLT, which, broadly speaking, codified international law on
the subject of the conclusion, interpretation and termination of treaties. In
relation to the subject of the present essay, however, it has to be said that the
VCLT is only of limited assistance. The definition of a treaty as 'an inter-
national agreement concluded between States in written form and governed
by international law, whether embodied in a single instrument or in two or
more related instruments and whatever its particular designation' does
indeed lay down a number of positive formal rules as to what constitutes a
treaty. But with respect to the substantive issue of which among the
'agreements' that meet the positive formal requirements set out in the
VCLT are to be upheld by international law and which are not, the VCLT
is essentially silent. It simply refers to an 'international agreement', but
gives no further indication of what is meant by that expression.
II THE DEFINITION OF TREATY IN THE VIENNA CONVENTION
I Meaning of a 'Legal Obligation' according to the ILC

In his first Report on the Law of Treaties, Brierly merely mentioned the
problem of the establishment of a relationship under international law. 12
Lauterpacht, while not proposing a comprehensive definition of a treaty,
sought to include as elements thereof the creation of legal obligations, and
the entering by the parties into undertakings of a legal character." This
legal obligation was the element that singled out a treaty from a political
instrument. This line of reasoning was shared by Fitzmaurice, who pre-
sented several drafts, all of which referred to the creation of 'legal obliga-
tions' or the establishment of a 'relationship' governed by international
12 ]. L. Brierly, First Report on the Law of Treaties (Art. I(a» (below, n. 24) p. 226.
13 H. Lauterpacht, First Report on the Law of Treaties, see below, n. 24, p. 90; see also Sir G.
Fitzmaurice, The Law and Procedure of the International Court of Justice (Grotius Publishers, 1986)
vol. II, pp. 822-3.
law. 14 In his first draft, however, he added the requirement of the element
of intention to create international obligations and the intention to estab-
lish a relationship under international law. Once established, treaties
would automatically be governed by international law. Article 1(2) of the
Expository Draft Code, presented in 1959 to the General Assembly, con-
tained only the phrase 'governed by international law', 15 as- opposed to
other instruments which are governed by domestic law even if they regu-
late matters of international character.
As has been mentioned, one of the main problems relating to the con-

cept of a treaty in the context of the VCLT is the inadequacy, in certain
respects, of its definition as it relates to the substantive aspects of a treaty.
In particular, the essential questions remain as to what constitutes an
international agreement governed by international law, as well as what is
the test for deciding whether such an agreement has come into existence
in a particular case. Early drafts presented to the ILC went some way
towards providing answers to this problem. Thus, the relevant words in
the definition of 'treaty' contained in Article 2 of Fitzmaurice's draft
were: '... a treaty is an international agreement ... intended to create
rights and obligations, or to establish relationships, governed by interna-
tionallaw'. Leaving aside the rather fine distinction contained in this def-
inition between an agreement intended to create rights and obligations
and one intended merely to establish a relationship, it does contain the
essential element implied by the term 'international agreement governed
by international law'. This term is meant to imply that in order to con-
stitute a treaty, an agreement must be legally binding in international law
and create legally binding rights and obligations: it is not enough that it
falls within the ambit of international law or that international law is
applicable to it. In other words, for an agreement to constitute a treaty
not only must international law (as opposed to any other legal system) be
applicable to it, but international law must also designate the agreement
as one that is legally binding on the parties (as opposed to an agreement
which is merely morally binding or merely political in nature). Even on
this basis, there remains a further crucial element in establishing a com-
prehensive definition of the concept of a treaty, namely, the distinction
between legally binding agreements and other agreements or arrange-
ments between States.
2 'Treaty'
The ILC has explained that the expression 'treaty' is a generic term and
that 'an extraordinarily varied nomenclature has developed which serves
14 G. Fitzmaurice, First Report on the Law of Treaties (Art. 2(1» (below, n. 24) p. 117.
15 YBlLe (1959) vol. II, Report of the ILC to the General Assembly on the work of its eleventh
session, Doc. A/4I69, pp. 95-7. The ILC admitted that there was a vast group of treaties that,
although concluded between States (e.g., commercial transactions), were governed by private,
national law.
to confuse the question of classifying international agreements', adding

that 'there is no exclusive or systematic use of nomenclature for particu-
lar types of transaction'. 16 This has not, however, deterred a number of
authors from attempting to relate particular designations of international
agreements to their contents. For example, Myers.'? asserts, on the basis
of Article 102 of the United Nations Charter, which appears to uphold a
distinction between 'treaty' and 'international agreement' , 18 'that one cate-
gory emanates from the highest authority in the State and the other from
subordinate executive authority'. This distinction has not been main-

tained in practice, in case law or in the literature.
Only very general conclusions may be drawn from the name of a treaty
or its subject matter. Treaties bear a wide range of names, such as
'covenant'; 'agreed minutes'; 'charter'; 'notes verbales'; 'memorandum of
understanding'; 'convention' and 'agreement'. 19 In most cases the names
such as 'charter' or 'covenant' are applied to the more solemn type of
instruments. The term 'treaty', when applied to agreements that concern
technical or other matters, constitutes a less solemn designation.
Nonetheless, nomenclature cannot be relied on in order to characterize
the substance of an international agreement.:" The IC] stated in 1962
that: '[t]erminology is not the determinant factor as to the character of an
international agreement or undertaking', and this is borne out by numer-
ous examples. ZI
16 The Official Records of the United Nations Conference on the Law of Treaties (1968) UN.
Doc. A/Conf.39/I I/Add.z, p. 8; YBlLC (1966) vol. II, Report of the ILC to the General Assembly
on the second part of its seventeenth and its eighteenth session, Doc.A/6390/Rev. I, p. 188.
17 Myers (above, n. 5) p. 578.
18 Art. IOZ: 1. '[e]very treaty and every international agreement entered into by any lVIember of
the United Nations after the present Charter comes into force shall as soon as possible be registered
with the Secretariat and published by it. z. No party to any such treaty or international agreement
which has not been registered in accordance with the provisions of paragraph I of this Article may
invoke that treaty or agreement before any organ of the United Nations'.
19 YBlLC (I96z), vol. I, 638th meeting, p. 5Z9: The Vienna Convention has adopted the term
'treaty' as a generic term rather than the term 'agreement'. It has to be noted, however, that other terms
are also used interchangeably, without an explanation as to the choice. The International Law
Commission has said: '[t]hus, in addition to "treaty", "convention" and "protocol" one not infrequently
finds titles such as "declaration", "charter", "covenant", "pact", "act", "statute", "agreement", "concor-
dat", whilst names like "declaration", "agreement" and "modus vivendi" may well be found given both
to formal and less formal types of agreements. As to the latter, their nomenclature is almost illimitable,
even if some names such as "agreement", "exchange on notes", "exchange of letters", "memorandum of
agreement", or "agreed minute" may be more common than others. It is true that some types of instru-
ments are used more frequently for some purposes rather than others; it is also true that some titles are
more frequently attached to some types of transaction rather than to others. But there is no executive or
systematic use of nomenclature for particular types of transaction'.
20 See for example an informal designation of a treaty establishing bilateral relationships between the
United States and the former German Democratic Republic which was called the 'Agreed Minutes', see
(1994) 98 International Law Reports 1-13. See also the 'Memorandum of Understanding on Port State
Control' which establishes a very sophisticated system, ZI lLM (I98Z) p. 1.
21 South West Africa cases (above, n. I) 331.
3 'In Written Form'

The VCLT refers to treaties as international agreements concluded in
written form. This does not, however, mean that international agreements
concluded entirely orally do not have any binding force in international
law" It merely means that the provisions of the VCLT, as treaty provi-
sions, only apply to agreements in written form. This limitation of the
VCLT was dictated by the exigencies of practicality and clarity.'< The
principles set out in the VCLT that are relevant to purely oral agreements
may nonetheless apply to them as provisions of customary international

law. Furthermore because, as has been noted, the VCLT provides no assis-
tance as to what actually constitutes an 'international agreement', this fun-
damental question remains one of customary law, with respect to which
there seems to be no distinction between written and oral agreements. On
the other hand it has to be admitted that there are no convincing modern
examples of an oral agreement amounting to a treaty.
4 The Particular Form of a Treaty

The VCLT does not specify any particular written form for an interna-
tional agreement to constitute a treaty. Certain problems were addressed
by the ILC's Rapporteurs on the Law of Treaties. For instance, the first
Rapporteur, J. L. Brierly, explained that the requirement for treaties to be
'recorded in writing' was fulfilled by 'typewriting and printing and, indeed,
any other permanent method of recording'. 24 Similarly, the number of
22 Art. 3, concerning 'International agreements not within the scope of the present Convention',
provides as follows: '[t]he fact that the present Convention does not apply to international agree-
ments concluded between States and other subjects of international law or between such other sub-
jects of international law, or to international agreements not in written form, shall not affect: (a) the
legal force of such agreements; (b) the application to them of any of the rules set forth in the pres-
ent Convention to which they would be subject under international law independently of the
Convention; (c) the application of the Convention to the relations of States as between themselves
under international agreements to which other subjects of international law are also parties'.
23 See above, n. 15.
24 ]. L. Brierly, First Report on the Law of Treaties (Art. I(a» YBILC (1950) vol. II, Doc.
A/CN.4.23, p. 222 at p. 227; idem, Second Report on the Law of Treaties, YBILC (1951) vol. II,
Doc.A/CN.4/43, p. 70; idem, Third Report on the Law of Treaties, YBILC (1952) vol. II, Doc.
A/CN.4/54, p. 50; Fitzmaurice on the other hand asked a question: '[w]ould an oral agreement
recorded (a) with the knowledge and by the intention of the parties, (b) secretly by one of them only,
on disc or tape recorder, amount to an agreement in writing?': G. Fitzmaurice, First Report on the
Law of Treaties, YBILC (1956) vol. II, Doc.A/CN.4/101, p. 1°4 at p. 1°7, footnote 4; idem, Second
Report on the Law of Treaties, YBILC (1957) vol. II, Doc.A/CN.4/107, p. 16; idem, Third Report on
the Law of Treaties, YBILC (1958) vol. II, Doc.A/CN.4/II5, p. 20; idem, Fourth Report on the Law
of Treaties, YBILC (1959) vol. II, Doc. A/CNA/120, p. 37; idem, Fifth Report on the Law of Treaties,
YBILC (196o) Doc.A/CN.4/130, p. 69; H. Lauterpacht, First Report on the Law of Treaties, YBILC
(1953) vol. II, Doc. A/CN.4/63, p. 90; idem, Second Report on the Law of Treaties, YBILC (1954)
vol. II, Doc.A/CN.4/87, p. 123; C. H. M. Waldock, First Report on the Law of Treaties, YBILC (1962)
vol. II, Doc.A/CN.4/I44 and Add.r , p. 27; idem, Second Report on the Law of Treaties, YBILC
(1963) vol. II, Doc.A/CN.4/156 and Adds.r-vj , p. 36; idem, Third Report on the Law of Treaties,
YBILC (1964) vol. II, Doc.A/CN.4/167 and Adds.r-sg , p. 5; idem, Fourth Report on the Law of
Treaties, YBILC (1965) vol. II, Doc.A/CN.4/177 and Adds.r-a; idem, Fifth Report on the Law of
documents in which an agreement is contained has no influence on its
legal character.
The main problem that divided the ILC was the legal character of so-
called exchanges of notes and letters, which are intended to acquire legal
force upon mutual exchange. Brierly was of the view that instruments of
this kind should be coveredr" and despite doubts raised in the ILC, later
drafts did include exchanges of notes and letters within the definition of a
treaty. For example, the 1962 ILC Draft Articles referred to treaties con-
cluded in simplified form, which, the Commission explained, included

exchanges of notes, exchanges of letters, agreed minutes, memoranda of
agreement; joint declarations and 'any other document concluded by any
similar procedure'. 26 In the end, due to inherent difficulties connected
with defining treaties in simplified form, the ILC abandoned the inclu-
sion of an express general chapeau describing their form."?
The International Court of Justice and its predecessor the Permanent
Court of International Justice have had to decide on several occasions
whether certain instruments were treaties or not. In the Aegean Sea
case,28 the question was whether the Joint Brussels Communique issued
by Greece and Turkey amounted to an agreement in international law
embodying the intention of both parties to the dispute to submit the case
to the Court. It did not bear any signatures, nor was it initialled.
According to the Turkish government, it did not constitute an agreement
under international law and accordingly had not been ratified, 'at least at
the part of Turkey' .29 The Greek government maintained that the Joint
Communique did constitute an agreement. According to the Greek gov-
ernment, ' ... it is necessary, and it is sufficient, for the communique to
include-in addition to customary forms, protestations of friendship,
recital of major principles and declarations of intent-provisions of a
treaty nature' .3 0 During the oral proceedings before the ICJ, Greece sub-
mitted that the Joint Communique was 'a modern ritual which has
acquired full status in international practice'. The Court declined juris-
diction in this case, but it did observe that treaties may appear in their
'infinite variety't " and that in order to conclude whether an instrument is
Treaties, YBlLC (1966) vol. II, Doc.A/CN.4/183, and Adds. 1-4, p. I; idem, Sixth Report on the Law
of Treaties, YBlLC (1966) vol. II, Doc.A/CN.4/186 and Adds. 1-7, p. 51.
25 Brierly, First Report on the Law of Treaties (Art. I(b» (above, n. 24) p. 229.
26 Waldock, First Report on the Law of Treaties (Art. I(b» (above, n. 24) p. 33. It must be noted
that the inclusion of this group of treaties influenced the drafting of the Article on presentation of
full powers which provided that the production of full powers will be dispensed with for treaties in
simplified form, unless they are requested by other negotiating States (Art. 4, para. I(b) of the Draft).
27 See above, n. 18.
28 See on the case, L. Gross, 'The Dispute Between Greece and Turkey Concerning the
Continental Shelf in the Aegean', 71 AJlL (1977) pp. 31-59.
29 Aegean Sea (above, n. 7) 39, para. 95. 3° Ibid.
31 Temple of Preah Vihear (Cambodia v Thailand) (Preliminary Objections) Judgment of
26 May 1961, (1961) IC] Reports 31; South West Africa cases (above, n. I).
AND TREATY OBLIGATIONS BETWEEN STATES lSI
a treaty or not, the nature of the act or transaction must be determined

by its actual terms and by the particular circumstances in which it was
drawn Up.32
In the 1994 Qatar/Bahrain case-" the Court had to decide on the legal
character of two instruments upon which Bahrain filed a case against
Qatar: first, a double Exchange of Letters concluded in December 1987
between Qatar and Saudi Arabia, on the one hand, and between Bahrain
and Saudi Arabia, on the other hand; and second, a set of minutes signed
by the Foreign Ministers of Qatar and Bahrain in December 1990, on the

occasion of the meeting of the Co-operation Council of Arab States of
the Gulf. Again the question arose whether the instruments in question
constituted a treaty, in this case a 'special agreement', to give the Court
3 Aegean Sea case (above, n. 7) para. 96: ' ... the nature of the act or transaction to which the
2
Communique gives expression; and it does not settle the question simply to refer to the form-a
communique-in which that act or transaction is embodied. On the contrary, in determining what
was indeed the nature of the act or transaction embodied in the Brussels Communique, the Court
must have regard above all to its actual terms and to particular circumstances in which it was drawn
up'. See also the 2002 Case Concerning the Land and Maritime Boundary between Cameroon and
Nigeria, Cameroon v Nigeria: Equatorial Guinea Intervening. Judgment of 10 October 2002, text on:
http://www.icj-cij.org/icjwww/idocket/icn/icnframe/htm. The documents in question were the 1975
Maroua Declaration and the 1971 Younde II Declaration. These declarations were pertinent in
delimitation of the Akwayafe River. Cameroon observed that the 1970 Joint Commission established
to delimit the boundary issued the Younde II Declaration. Cameroon contented that this
Declaration represented an international agreement binding on both parties and that this fact later
was confirmed by the 1975 Maroua Declaration. Cameroon also treated this Declaration as a bind-
ing agreement. Further the Joint Communique issued in 1975 at the end of the Maroua summit
meeting and signed by the Heads of State stated that 'the signatories reached full agreement on the
exact course of the maritime boundary'. Cameroon argued that these two Declarations were a bind-
ing definition of the boundary delimiting the respective maritime areas of Cameroon and Nigeria.
The arguments of Cameroon may be summarized as follows: the Maroua Agreement signed by the
Heads of Nigeria and Cameroon represented the consent of two States to be bound by the treaty;
that the Heads expressed their intention to be bound by this instrument; that no reservation or con-
dition was expressed in the text, and that the instrument was not expressed to be subject to ratifica-
tion; that the publication of the Joint Communique signed by the Heads of State is also the evidence
of their consent; that the vitality of the Maroua Agreement was further confirmed by the subsequent
exchange of letters between the Heads of two countries correcting a technical error in the calculation
of one of the points on the agreed line; and that the reference to Younde II Declaration in the Maroua
Agreement confirms that their legal status is the same. Further, Cameroon argued that its arguments
were confirmed by the publicity given to the partial maritime boundary established by the Maroua
Agreement that was notified to the Secretariat of the United Nations and published in publications of
wide scope of coverage that are well known in the area of maritime delimitation. Cameroon further sub-
mitted that they are confirmed by contemporary practice of States, the VCLT and by the fact that inter-
national law is in favour of the stability and permanence of all boundary agreements (para. 253 of the
judgment). Nigeria contended in relation to the Younde II Declaration that it was not a binding agree-
ment, but it was a record of a meeting which constituted a part of an ongoing programme concerning
the boundary delimitation and that the matter was subject to further discussion at subsequent meetings
(para. 257 of the judgment). See also further above, n. 3 I and below, n. 39. The Court stated as follows:
'[t]he Court considers that the Maroua Declaration constitutes a international agreement concluded
between States in written form and tracing a boundary; it is thus governed by international law and con-
stitutes a treaty in the sense of the Vienna Convention on the Law of Treaties ... and which in any case
reflects customary international law in this respect' (para. 263 of the judgment).
33 See above, n. 8.
jurisdiction. This case also illustrates the importance of the interpreta-

tion of treaties in determining whether an instrument constitutes a treaty.
An important element of the dispute was the agreement of both par-
ties that the 1987 Exchange of Letters was an international agreement
with binding force in their mutual relations. According to Bahrain, how-
ever, the 1990 Minutes were only a simple record of negotiations, similar
in legal nature to the Minutes of the Tripartite Committee, and therefore
did not constitute an international agreement and thus could not serve as
the basis for the Court's jurisdiction. 34

The Court observed that international agreements might assume a
number of forms and have many denominations. It adopted the same
approach as it had in the Aegean Sea case, finding it necessary to analyse
the actual terms and particular circumstances in which the alleged agree-
ment was drawn up.35 Taking all the facts of the case into consideration,
34 Ibid., 21-2.
35 Ibid., para. 24. One of the arguments presented by Bahrain was that the Minutes related to the
territory of the State therefore they could only be considered binding according to the Constitution
of Bahrain i.e. after their positive enactment as law (para. 26 of the judgment). The Court rejected
this argument. See also Cameroon v Nigeria case (above, n. 32) where Nigeria further relied on
Art. 46 para. 2 of the VCLT. Art. 46 para. 1 provides as follows: I[a] State may not invoke the fact
that its consent to be bound by a treaty has been expressed in violation of a provision of interna-
tionallaw regarding the competence to conclude treaties as invalidating its consent unless that vio-
lation is manifest and concerned a rule of its internal law of fundamental importance'. Art. 46 para. 2
provides as follows: '[a] violation is manifest if it would be objectively evident to any State conduct-
ing itself in the matter in accordance with normal practice and in good faith'. According to the
Constitution of Nigeria in force in 1975, executive acts were generally fulfilled by the Supreme
Military Councilor subject to its approval. Nigeria contended in relation to the Younde Declaration
that it lacked validity since it was not ratified by the Supreme Military Council, having been signed
by the Nigerian Head of State. It argued further that: States are usually familiar with legislative and
constitutional developments in neighbouring States of such great importance as to influence the
treaty-making power and having an impact upon inter State relations between these two States.
Further communications between the two Heads of State clearly indicated that any arrangements
that might be agreed between the two Heads of State were subject to the subsequent and separate
approval of the Government of Nigeria (para. 258 of the judgment). Nigeria further submitted that
Cameroon, according to an objective test based upon the provisions of the VCLT, either knew or,
having acted prudently, should have known that the Head of the State of Nigeria did not have the
power to make legally binding commitments without referring back to the Nigerian Government
(i.e. the Supreme Military Council). Therefore, it should have been 'objectively evident' to
Cameroon, within the meaning of Art. 46, para. 2 of the VCLT that the Nigerian Head of State did
not have unlimited power (para. 258 of the judgment). Further, Nigeria stated that since 1977, in
bilateral summits between the Heads of State and boundary experts, it was confirmed that the
Maroua Declaration was not ratified and therefore not binding on Nigeria. This non-binding char-
acter was confirmed by the meetings held in 1991 and 1993 (para. 259 of the judgment). Cameroon
argued that even if there was a violation of the internal law of Nigeria, the alleged violation was
not 'manifest', and did not concern a rule of internal law of 'fundamental importance', within
the meaning of Art. 46, para. 1 of the VCLT; it denied that any communication was made during a
1977 meeting between the two Heads of State to the effect that the Declaration was not binding on
Nigeria and claimed that it was not until 1978 (some three and half years later after the Declaration),
that Nigeria stated its intention to challenge it; and it argued that Nigeria had not shown that the
Constitution of Nigeria did in fact require the agreement to be ratified by the Supreme Military
Council (para. 260 of the judgment). The Court did not accept the argument of Nigeria and stated
that: '[t]he rules concerning the authority to sign treaties for a State are constitutional rules of
the Court decided that the double Exchange of Letters and the 1990
Minutes were international agreements creating rights and obligations
for the parties. The Court decided that by the terms of those agreements
the parties had undertaken to submit to the Court the whole dispute
between them, as provided for by the text proposed by Bahrain to Qatar
on 26 October 1990 and accepted by Qatar in December 1990, and
referred to in the 1990 Minutes as the 'Bahrain formula'.
In paragraph 25 of its judgment the Court laid down the elements of
an international undertaking that constitutes a treaty.-" It said:

... Accordingly, and contrary to the contentions of Bahrain, the Minutes are not
a simple record of a meeting, similar to those drawn up within the Tripartite
Committee; they do not merely give an account of discussions and summarize
points of agreement and disagreement. They enumerate the commitments to
which Parties have consented. They thus create rights and obligations in inter-
national law for the Parties. They constitute an international agreement.
As has been observed, the word 'thus' in that paragraph is of great
importance, because it is the link between 'commitments to which the
Parties have consented', on the one hand, and the creation of 'rights and
obligations in international law' , on the other'? The Court's ruling may
be interpreted as indicating that the consent to commitments is of fun-
damental importance for the creation of a treaty under international law.
The Eastern Greenland case 38 shows clearly the limitations of the
VCLT definition in the face of multifaceted sources of international legal
obligations-in that case, obligations created by unilateral acts. The act in
question was the so-called 'Ihlen Declaration'. On 14 July 1919 the Danish
Minister accredited in Norway said, in a conversation with Mr Ihlen, the
Norwegian Minister of Foreign Affairs, that Denmark would not object
to any claim to Spitzbergen which Norway might submit at the Peace
fundamental importance. However, a limitation of a Head of State's capacity in this respect is not
manifest in the sense of Article 46, paragraph 2, unless at least properly publicised. This is particu-
larly so because Heads of States belong to the group of persons who, in accordance with Article 7,
paragraph 2, of the Convention are considered as representing the State' (para. 265 of the judg-
ment). The Court also said that' there is no general legal obligation for States to keep themselves
informed of legislative and constitutional developments in other States which are or may become
important for international relations of these States' (para. 266 of the judgment). As to the argument
of Nigeria that the Declaration was invalid since it was never ratified, the Court stated as follows:
'[t]hus while in international practice a two-step procedure consisting of signature and ratification is
frequently provided for in provisions regarding entry into force of a treaty, there are also cases where
a treaty enters into force immediately upon signature. Both customary international law and the
Vienna Convention on the Law of Treaties leave completely up to States which procedure they want
to follow. Under the Maroua Declaration, the two Heads of State of Cameroon and Nigeria agreed
to extend the delineation of maritime boundary between the two countries from Point 12 to Point G
on the Admiralty Chart No. 3433 annexed to this Declaration. In this Court's view, that Declaration
entered into force immediately upon signature' (para. 264 of the judgment).
3° Klabbers (above, n. 2) pp. 366-7. 37 Ibid.
38 Case Concerning the Legal Status of Eastern Greenland (Denmark v Norway) (1933) PCI],
Series A/B, no. 53.
Conference, if Norway would not oppose the Danish claim at the same
conference to the whole of Greenland. In another conversation on 22 July
1919, Mr Ihlen stated that: ' ... the plans of the Royal [Danish] Govern-
ment respecting Danish sovereignty over the whole of Greenland ... would
meet with no difficulties on the part of Norway'. These were words
recorded by Mr Ihlen in the form of minutes, and submitted to his
Government. One of the questions before the Court was the legal char-
acter of the Ihlen Declaration: was it simply a unilateral declaration, or a
hybrid instrument combining the features of an agreement with those of

a unilateral declaration?
The Court's judgment did not fully address any of these questions. It
focused rather on the binding nature of an international obligation,
regardless of its source. The Court said:
[t]he Court considers it beyond all dispute that a reply of this nature given by
the Minister for Foreign Affairs on behalf of his Government in response to a
request by the diplomatic representative of a foreign Power, in regard to a ques-
tion falling within his province, is binding upon the country to which the
Minister belongs.I?
The Court, having taken into consideration all circumstances, concluded
that it was 'unable to regard the Ihlen declaration of July zand 19 I 9 other-
wise than as unconditional and definitive', sinc~ '[i]t was so understood
by the Norwegian Minister for Foreign Affairs when he told the Danish
Minister at Christiania on November 7th 1919, that "it was a pleasure to
Norway to recognise Danish sovereignty over Greenland". [i]t was also in
the same sense that the Danish Minister at Christiania had understood
the Ihlen declaration, when he informed the Danish Minister for Foreign
Affairs on July zand 1919, that Mr Ihlen had told him "that the plans of
the Royal Government in regard to the sovereignty of Denmark over the
whole Greenland would not encounter any difficulties on the part of
Norway'" .4 0 Finally, the Court found that it followed that 'as a result of
the undertaking involved in the Ihlen declaration of July aznd 1919,
Norway is under an obligation to refrain from contesting Danish sover-
eignty over Greenland as a whole, and a fortiori to refrain from occupy-
ing a part of Greenland'. 4 1
Perhaps the most interesting aspect of the analysis was the Court's
indication that interdependence of mutual obligations might not neces-
sarily create a bilateral engagement. The Court stated that:
[i]t is clear from the relevant Danish documents which preceded the Danish
Minister's demarche at Christiania on July 14th 1919, that the Danish attitude
in the Spitzbergen question and the Norwegian attitude in the Greenland ques-
tion were regarded in Denmark as interdependent, and this interdependence
39 Ibid., p. 7 1 . 4° Ibid., pp. 72-3. 4

1
Ibid., p. 73.
appears to be reflected also in Mr Ihlen's minute of the interview. Even if this

interdependence-which, in view of the affirmative reply of the Norwegian
Government, in whose name the Minister for Foreign Affairs was speaking,
would have created a bilateral engagement-is not held to have been established,
it can hardly be denied that what Denmark was asking of Norway ('not to make
any difficulties in the settlement of the [Greenland] question') was equivalent to
what she was indicating her readiness to concede in the Spitzbergen question (to
refrain from opposing 'the wishes of Norway in regard to the settlement of this
question'). What Denmark desired to obtain from Norway was that the latter
should do nothing to obstruct the Danish plans in regard to Greenland. The

declaration which the Minister for Foreign Affairs gave on July zznd 19 I 9, on
behalf of the Norwegian Government, was definitely affirmative: 'I told the
Danish Minster to-day that the Norwegian Government would not make any
difficulty in the settlement of this question'. 42
The Court appears to have based its decision as to the binding nature of
the declaration in part on the formal legal ground of the inherent power of
Ministers of Foreign Affairs to bind States by virtue of their statements
(as now codified in Article 7 of the VCLT).43 The Court emphasized that
the position of the Minister for Foreign Affairs who had made a state-
ment binding his government was sufficient to create an obligation for
such a State, even without its having been an 'interdependent' commit-
ment. The Court held that it resulted in 'an undertaking' on the part of the
Norwegian government, its content being to refrain from making difficulties
for Denmark in asserting its sovereignty over the whole of Greenland (but
without constituting a direct acknowledgement of Danish sovereignty) and to
refrain from occupying any part of Greenland. The Court thus characterized
42 Ibid., pp. 7 0 - 1 .
43 Of special interest is Art. 7, para. 2: '[i]n virtue of their functions and without having to pro-
duce full powers, the following are considered as representing their State:
(a) Heads of States, heads of Governments and Ministers of Foreign Affairs, for the purpose of
performing all acts relating to conclusion of a treaty;
(b) heads of diplomatic missions, for the purpose of adopting the text of a treaty between the
accrediting State and the State to which they are accredited;
(c) representatives accredited by States to an international conference or to an organ of an interna-
tional organisation or one of its organs, for the purpose of adopting the text of a treaty in that
conference, organisation or organ'.
See on this the Cameroon v Nigeria case (above, n. 32): Nigeria invoked Art. 7, para. 2 of the VCLT
and argued that Cameroon according to an objective test based upon on the provisions of the VCLT
either knew or should have known that the Head of State of Nigeria did not have the power to make
legally binding commitments without referring back to the Government of Nigeria, i.e. then the
Supreme Military Council. Art. 7, para. 2 of the VCLT, according to Nigeria, refers only to the way
in which a person's function as a State's representative is established, but does not deal with the
extent of that person's powers when exercising that representative function. Cameroon also submit-
ted that according to Art. 7, para. 2 of the VCLT as a matter of international law a Head of State is
always considered as representing a State for the purpose of expressing the consent to be bound by
a treaty (para. 260 of the judgment). The Court did not accept the argument that Art. 7, para. 2 of
the VCLT is solely concerned with the way that a person's function as a State's representative is
established, but does not deal with the extent of that person's authority when exercising the represen-
tative functions (para. 265 of the judgment).
the Ihlen Declaration as a unilateral statement of a purely verbal nature.

However, this was perhaps an oversimplification, dictated no doubt by the
exigencies of the case. It is difficult not to acknowledge some force in the
position of the Danish government, which claimed that in this case there
existed, if not a treaty, then at least two interdependent engagements in the
form of two unilateral acts.r' The understanding of the Danish government
was that the statements made by the Danish representative and the
Norwegian Minister for Foreign Affairs were 'interdependent', thus estab-
lishing a so-called do ut des reciprocal contractual recognition of Norwegian

interests in Spitzbergen by Denmark and recognition of Danish interests
in Greenland by Norway. Although not satisfactory if viewed in terms of
a definition, it may be said that the Ihlen Declaration was in law a hybrid
instrument where unilateral and bilateral obligations were inextricably
interlocked.
5 'Concluded Between States'

(a) The issue of international organizations
At the time of drafting, the controversial issues included the question
of what subjects of international law the VCLT should cover, and the
notion of a 'State'. As to the first of these issues,it was debated from the
outset whether to extend the scope of the Convention to include interna-
tional organizations. In Brierly's First Report, followed by the Reports of
Lauterpacht, Fitzmaurice and Waldock.ff as well as at the Vienna
Diplomatic Conference.t'' it was proposed that the VCLT should extend to
include international organizations. In 1950 the Commission was in favour
of extending the scope of the Convention to international organizations."?
44 Judge Anzilloti said as follows: '[t]he dispute is one between Denmark and Norway regarding
the sovereignty over a territory in Eastern Greenland. Denmark's position formed the subject of a
request addressed by the Danish Government to the Norwegian Government in July 1919, and of a
declaration on the part of the latter Government accepted by the Danish Government. Accordingly,
in my view, the first thing to be done was to decide whether this constituted a valid agreement between
two governments; if so, the rule to be applied for the solution of the dispute should first and foremost
have been sought in this agreement.' Later he continued: 'The outcome of all this is therefore an agree-
ment, concluded between the Danish Minister at Christiania, on behalf of the Danish Government, and
the Norwegian Minister for Foreign Affairs, on behalf of the Norwegian Government, by means of
purely verbal declarations. The validity of this agreement has been questioned, having regard, in the
first place, to its verbal form, and to the competence of the Minister of Foreign Affairs. As regards
the form, it should be noted, to begin with, that as both Parties are agreed as to the existence and tenor
of these declarations, the question of proof does not arise. Moreover, there does not seem to be any
rule of international law requiring that agreements of this kind must necessarily be in writing, in
order to be valid.' Judge Anzilotti, Dissenting Opinion, supra n. 38 at p. 76 and p. 91.
45 See above, n. 24:]. L. Brierly, First Report on the Law of Treaties (Art. I(a) p. 228; H. Lauterpacht,
First Report on the Law of Treaties (Art. I) p. 94; G. Fitzmaurice, First Report on the Law of Treaties
(Art. 1(3)) p. 117; C. H. M. Waldock, First Report on the Law of Treaties (Art. I(a)), p. 32.
6
4 See the proposals of the United States and Vietnam, The Vienna Diplomatic Conference
UN. Doc.A/Conf.39/11/Add.2, p. 110.
47 YBILC (1950) vol. II, Report of the ILC to the General Assembly on the work of its second
session, Doc.A/13I6, para. 162, p. 381: 'A majority of the Commission were also in favour of includ-
ing in its study agreements to which international organisations are parties... ' .
However, in 1962, the Commission confirmed its decision to defer exam-

ination of treaties entered into by international organizations until it had
made a further progress with its draft on treaties concluded by States.r"
In 1965 the ILC finally decided to limit the scope of the Draft Articles
to treaties concluded between States and inserted a new Article expressly
so providing."? In 1966 the Commission expressly reaffirmed its position
that 'the principles set out in the draft articles are to a large extent rele-
vant also in the case of treaties concluded between States and other sub-
jects of international law and between two or more such other subjects of

international law'. Following this statement, the Commission inserted a
new provision, which became VCLT Article 3(a), the purpose of which
was to safeguard the legal force of such agreements. S°
As is stated in VCLT Article I, the VCLT relates only to treaties con-
cluded between States." However, the formulation of VCLT Article
3(C), stating that the fact that the VCLT does not apply to agreements
concluded between States and other subjects of international law shall
not affect the application of the VCLT to the relations of States as
between themselves under international agreements to which other sub-
jects of international law are also parties, read in conjunction with Article
73 of the 1986 Vienna Convention on the Law of Treaties between States
and International Organizations or between International Organizations
('As between States parties to the [VCLT], the relations of those States
under a treaty between two or more States and one or more international
organizations shall be governed by [the VCLT]'), indicates that the 1969
VCLT applies also to some extent to relationships between States and
international organizations. 52
8
4 YBlLC (1962) vol. II, Report of the ILC to the General Assembly on the work of its four-
teenth session, Doc.A/S209, para. 21 of the Introduction, p. 16I.
49 YBlLC (1965) vol. II, Report of the ILC to the General Assembly on the work of the first part
of its seventeenth session, Doc.A/6009, p. 159.
5° YBlLC (1966) vol. II, Report of the ILC to the General Assembly on the work of the second
part of its seventeenth session, Doc.A/6309/Rev. I, p. 190.
51 Art. I, 'Scope of the Present Convention': '[t]he present Convention applies to treaties between
States' .
52 Art. 3(c) of the VCLT, on 'International Agreements not within the scope of the present
Convention' provides that '[t]he fact that the present Convention does not apply to international
agreements concluded between States and other subjects of international law or between such other
subjects of international law, or to international agreements not in written form, shall not affect: ...
(c) the application of the Convention to the relations of States as between themselves under inter-
national agreements to which other subjects of international law are also parties'. Art. 73 of the 1986
Convention on 'Relationship to the Vienna Convention on the law of treaties' provides that '[a]s
between States parties to the Vienna Convention on the Law of Treaties of 1969, the relations of
those States under a treaty between two or more States and one or more international organisations
shall be governed by that Convention'. See e.g., G. Gaja, 'A New Vienna Convention on Treaties and
International Organisations or between International Organisations: A Critical Commentary', 58
this Year Book (1987) pp. 253-69; see also E. W. Vierdag, 'Some Reflections on the Relationship
between the 1969 and the 1986 Vienna Convention on the Law of Treaties', 25 Archiv des
Viilkerrechts (1987) pp. 82-91 at 89.
The scope of application was, however, never clearly specified.

Therefore it may be said that
... the Vienna Convention, applying specifically to treaties between States, is
limited to agreements governed by international law between subjects of inter-
national law. But how the codified law applies to subjects of international
law which are not States (other than, now, international intergovernmental
organisations), or even how those other subjects are to be identified, are issues
left completely open. 53
The 1986 Vienna Convention evolved from the Vienna Diplomatic

Conference where a resolution was adopted to request the International
Law Commission to analyse the problem of treaties between States and
international organizations or between two or more organizations. 54
(b) Agreements between States and non-state entities and individuals

or corporations-the Anglo-Iranian Oil Co case
Agreements between States and individuals or corporations are not gen-
erally considered as belonging to the category of international agreements.
The locus classicus on this issue is the Anglo-Iranian Oil case. 55
On 29 April 1933, the Iranian government granted a concession to the
Anglo-Iranian Oil Company for a period of sixty years. Article 22 of
the concession agreement provided that all the differences relating to the
concession were to be submitted to arbitration. The procedure to be fol-
lowed was that of the PCI], and it was stated that the award was based on
the juridical principles contained in Article 38 of the Statute of the
Court. By Article 21 it was agreed that performance of the agreement
would be based on principles of mutual good will and good faith as well
as on reasonable interpretation of the agreement, and the Government of
Iran agreed that the Concession shall not be annulled and the terms shall
not be altered either by general or special legislation in the future, or by
administrative measures or any other acts whatever of the executive
au thorities.
On IS and 20 March 1951, the Iranian Majlis and Senate passed a law
nationalizing the oil industry in Iran. The British government, exercising
its right of diplomatic protection, submitted an Application to the Court
on the basis of Optional Clause Declarations made by itself and Iran. The
case raised difficult issues in relation to jurisdiction. The Iranian Optional
Clause Declaration referred to disputes arising in regard to situations
53 S. Rosenne, Developments in the Law of Treaties I945-I986 (Cambridge University Press,

1989) p. 22.
54 'Resolution Relating to Article 1 of the Vienna Convention on the Law of Treaties', in the
Official Records of the United Nations Conference on the Law of Treaties (1968), Final Act of the
United Nations Conference on the Law of Treaties, Doc.A/CONF.39.26+corr., p. 285.
55 Anglo-Iranian Oil Company case (United Kingdom v Iran) (Preliminary Objections) Judgment of
22 July 1952 (1952) ICJ Reports, 93.
or facts relating directly or indirectly to the application of treaties or

conventions accepted by Persia and subsequent to the ratification of this
Declaration. The question thus was whether the concession in question
belonged to the category of such treaties or conventions. The argument
submitted by the British government was based upon the involvement of
the League of Nations in the cancellation of an earlier concession in 1932
by the Iranian government. The matter was submitted to the League of
Nations. In 1933 the League of Nations Rapporteur submitted his
Report on the matter to the League Council, together with the text of a

new concession that replaced the earlier concession, and declared that
'the dispute between His Majesty's Government in the United Kingdom
and the Imperial Government of Persia is now finally settled'. Since the
representatives of both countries were satisfied with the outcome,
the matter was removed from the agenda of the Council. Importantly, the
government of the United Kingdom argued before the Court that, as a
result of these proceedings, the government of Iran undertook certain
treaty obligations in relation to the United Kingdom. The government of
the United Kingdom claimed that because of these obligations, the
agreement signed by the Iranian government and the Anglo-Persian Oil
Company 'has a double character, the character of being at once a con-
cessionary contract between the Iranian Government and the Company
and a treaty between the two Governments'v'"
The Court rejected the United Kingdom's argument based on the
'double character' of the agreement:
The Court cannot accept the view that that the contract signed by the Iranian
Government and the Anglo-Persian Oil Company has a double character. It is
nothing more than a concessionary contract between a Government and a for-
eign corporation. The United Kingdom is not a party to the contract; there is no
privity of the contract between the Government of Iran and the Government of
the United Kingdom. Under the contract the Iranian Government cannot claim
from the United Kingdom Government any rights which it may claim from the
company, nor can it be called upon to perform towards the United Kingdom
Government any obligations which it is bound to perform towards the Company.
The document bearing the signatures of the representatives of the Iranian
Government and the Company has a single purpose: the purpose of regulating the
relations between that Government and the Company in regard to the conces-
sion. It does not regulate in any way the relations between the two
Governments. 57
The Court further stated that the legal nature of the contract was not
altered by the submission of the dispute to the Council and that sub-
mission did not convert its terms into the terms of a treaty by which
5° Ibid., 1 12. 57 Ibid.

the Iranian government is bound vis-a-vis the United Kingdom
government. 58
On this analysis, there is a range of treaties of quasi-international char-
acter that do not fall within the ambit of the VCLT. Mention may be made
in this context of agreements concluded between Israel and the Palestinian
Liberation Organization, including the Agreement on Preparatory Powers
and Responsibilites of 29 August 1994;59 the Palestinian-Israeli Interim
Agreement on the West Bank and Gaza, the 'Oslo II Agreement' of
28 September 1995;60 and the Agreement on the Gaza Strip and the
Jericho Area, the so-called 'Cairo Agreement', of 4 May 1994. 6 1

6 'Governed by International Law'
The term 'governed by international law' forms part of the definition
of a treaty contained in Article 1, paragraph l(a) of the VeLT. This term
has two aspects. First, it is aimed at excluding from the definition those
agreements, even if international-and, indeed, even if made between
States-which are governed by some other legal system in the sense that
the applicable law is not international law. Second, the term 'governed by
international law' implies not just that international law is the law applica-
ble to the agreement in question, but also that, under international law, that
agreement is binding. Furthermore, this implication also contains within in
it the concept of 'intention' which was, as we shall see below, included in
the definition of treaty in earlier drafts of the VCLT. This will be con-
sidered further in I I I below.
Of course, merely specifying in an agreement that international law is
to be the applicable law is not sufficient to turn the agreement into a
treaty subject to the VCLT. This is of some importance in view of the
phenomenon of 'internationalization' of investment contracts, under
which it has become increasingly common for capital-exporting countries
to require that the proper law governing investment agreements should
be international law-a technique that aims to prevent adverse exercises
of sovereignty by the host country.P"
The element 'governed by international law' was one of the more
problematic issues of the definition of the treaty in international law and
58 Ibid., 113.
59 34 ILM (1994) p. 455.
60 35 ILM (1995) p. 55.
61 34 ILM (1994) p. 622.
62 See P. Muchlinski, Multinational Enterprises and Law (Blackwell, 1999) Ch. 14; F. A. Mann,
'The Law Governing State Contracts', 21 this Year Book (1944) p. I I; idem, 'The Proper Law of
Contracts Concluded by International Persons', 35 this Year Book (1959) p. 34; Sir R. Jennings,
'State Contracts in International Law', 37 this Year Book (1961) p. 156; D. W. Bowett, 'State
Contracts with Aliens: Contemporary Developments on Compensation for Termination or Breach',
59 this Year Book (1988) p. 49; C. Greenwood, 'State Contracts in International Law', 53 this Year
Book (1982) pp. 27-81.
Special Rapporteurs used various formulations to reflect this element.v'

The Commission finally came to the conclusion that the element of intent
is sufficiently referred to by the phrase 'governed by international law' .
7 Registration
A final formal aspect may be mentioned, though it is not a formal rule
constituting part of the definition of a treaty in the VCLT. It is some-
times suggested that the international registration of an agreement is an
indication of its being an international treaty.P" The duty to register was

very strongly formulated in the Covenant of the League of Nations
(Article 18), which read as follows: '[e]very treaty or international
engagement entered into hereafter by any member of the League shall be
forthwith registered with the Secretariat and shall as soon as possible
be published by it. No such treaty or international engagement shall be
binding until so registered'. Of course, the duty to register only applied
to League members. However, Article 18 of the Covenant did not have a
significant impact on the practice of states and the PCI] admitted cases
that involved unregistered agreements.If
The United Nations system of registration was formulated in Article 102
of the United Nations Charter: '[ e]very treaty and every international
agreement entered into by any Member of the United Nations after the
present Charter comes into force shall as soon as possible be registered
with the Secretariat and published by it', and further: '[n]o party to any
such treaty or international agreement which has not been registered in
accordance with the provisions of paragraph I of this Article may invoke
that treaty or agreement before any organ of the United Nations'P''
Article 102 of the Charter is less strongly worded than Article 18 of the
63 J L. Brierly, First Report on the Law of Treaties (Art. I(a»: 'a relation under international law'
(above, n. 24) 226; Lauterpacht, First Report on the Law of Treaties (Art. I): treaties as 'intended to
create legal rights and obligations' (above, n. 24); G. Fitzmaurice, First Report on the Law of Treaties
(Art. 2(1»: 'a treaty is an international agreement ... intended to create legal rights and obligations,
to establish relationships, governed by international law' (above, n. 24). Later the ILC dropped the
element of intention and simply stated in draft Art. 2, that treaties must be governed by international
law: YBILC (1962) vol. I, 638th meeting, p. 52. At the Vienna Diplomatic Conference, Waldock
stated that '[t]he phrase "international law" serves to distinguish between international agreements
regulated by public international law and those which, although concluded between States, are regul-
ated by national law of one of the parties (or by some other national law system chosen by the par-
ties.)', the Official Records of the United Nations Conference on the Law of Treaties (1968) UN
Doc.A/Conf.39/11/Add.2, para. 6, p. 9.
64 e.g. K. Widdows, 'What is an Agreement in International Law', 50 this Year Book (1979)
pp. 117-49 at 143; see also, D. N. Hutchinson, 'The Significance of the Registration or Non-
Registration of an International Agreement in Determining Whether or Not It Is a Treaty', 46
Current Legal Problems, vol. II (1993) pp. 257-90 at 265-6.
65 In Interpretation of the Treaty of Neuilly, the Court did not take notice of the fact that the com-
promis in that case was not registered: (1924) PCI], Series A, NO.4.
66 This essay deals only with registration from the point of view of defining what constitutes an
international treaty. There are, however, many other problems, such as whether a treaty in breach of
international law may be registered by the Secretary-General. On this point and on the history of
Covenant. Non-publication does not defeat the binding force of any inter-
national treaty; it only indicates that it will not be possible to invoke it before
any organ of the United Nations, including the IC]. In relation to Article
102, the General Assembly has adopted a regulation, which requires, in
paragraph I, registration of '[e]very treaty or international agreement,
whatever its form or descriptive name ... ' with the exception, according
to paragraph 2, that registration 'shall not take place until the treaty or
international agreement has come into force ... ,.67 The registration of a
document, however, does not amount to an acknowledgement by the

United Nations that the registered document is a treaty. The unilateral
Egyptian declaration on the Suez Canal was registered.P'' though it is
plainly not a treaty. The practice of the UN Secretariat is undoubtedly
to lean in favour of registration.P?
Although all members of the United Nations have a duty to register a
treaty, very often treaties are not registered at the time they are con-
cluded, or at all. This is the case with certain bilateral agreements.?? lump
sum agreements?' and secret agreements. Thus, it can be said that regis-
tration (or non-registration) of a treaty does not have any evidentiary
value. On one hand, not all treaties are registered; on the other, the UN
Secretariat registers almost all documents submitted to it, including uni-
lateral declarations. This was also the finding of the Court in the
Qatar/Bahrain case, in which registration was held not to be decisive as
to the character of the document in question. Bahrain submitted an argu-
ment that Qatar's late registration of the Minutes both with the United
Nations Secretariat (under Article 102 of the United Nations Charter) and
with the General Secretariat of the League of Nations (under Article 17 of
the Pact of the League of Arab States) indicated that Qatar did not
this Article see M. Brandon, 'Analysis of the Terms "Treaty" and "International Agreement" For
Purposes of Registration Under Article 102 of the United Nations Charter', 47 AJIL (1953)
pp. 49-69. See also S. Rosenne, 'United Nations Treaty Practice', 86 Recueil des Cours (1954-11)
pp. 281-443·
67 GA.Res. 97 (I), Yearbook of the United Nations (1946-1947). 68 265 UNTS 299.
69 M. Tabory, 'Recent Developments in the United Nations Treaty Registration and Publication
Practices', 76 AJIL (1982) pp. 357-8. It is submitted that Art. 102 expresses an absolute obligation
on UN members and does not have a discretionary character. Parties who are not UN members are
not bound by it. See also Art. 81 of the 1986 Vienna Convention which establishes an obligation to
register a treaty for all the Parties, also for those who are not members of the UN. Of importance is
also Art. 4, para. 1 of the Regulations that stipulates that all agreements to which the UN is a Party;
or where the UN has been authorized by the treaty or agreement to effect registration; or where the
UN is the depositary of a multilateral treaty or agreement are registered by the UN Secretariat ex
officio. B. Simma (ed.), The Charter of the United Nations, A Commentary (znd edn., Oxford
University Press, 2002) pp. 1282-3.
7° For the reasons of non-registration see Hutchinson (above, n. 64) p. 277; the same author is of
the view that the Court did not ascertain whether the process of registration was completed, p. 279.
71 R. B. Lillich, 'The Obligation to Register Treaties and International Agreements with the
United Nations', 65 AJIL (197 1) pp. 771-3.
accord to this document binding force. The Court emphasized, however,

that non-registration of a treaty has no bearing on its validity; it remains
valid as between the parties.?"
It is deceptive to attempt to determine the intention of the parties to
be bound by a treaty from the fact of its non-registration with the United
Nations." or its non-publication. In particular, the duty to publish in the
United Nations Treaty Series rests with the UN Secretariat, not with
the parties.?" and non-publication in the Series cannot be evidence of the
intention of parties not to be bound by it.

The element of intent was discussed within the Commission, and it
was eventually decided that it should not be included in the final Draft.i"
It was stated explicitly that intent was already contained in the notion
'governed by international law'. 76 Some members of the Commission
were of the view that there are agreements that by their very definition
are governed by international law, notwithstanding the intention of the
parties, such as territorial arrangements. According to this view the
intention of the parties is of no importance, whether it is spelled out or
not, since it is only international law that may be employed in cases of
such agreements. The extensive discussion which arose in connection
with the notion of 'governed by international law' during the Diplomatic
Conference was mostly provoked by uncertainty as to the legal character
or legal consequences of instruments such as 'agreed minutes'; or decla-
rations as, for example, the Yalta and Potsdam Agreements."?
The 1935 Harvard Draft Convention on the Law of Treaties had taken
into account as one of the elements of international treaties their subjection
2
7 Qatar v Bahrain, Judgment of 1 July 1994 (above, n. 8), paras. 28 and 29.
73 An example was the non-registration by Iraq of the 1963 'agreed minutes' (Iraq and Kuwait),
which Iraq later invoked as proof that it had not intended to be legally bound. See M. Mendelson
and S. Hulton, 'The Iraq-Kuwait Boundary: Legal Aspects', 23 Revue Belge de Droit International
(199 0) pp. 293-332 at 294.
74 See W. K. Geck, 'Treaties, Registration and Publication', 7 Encyclopaedia of Public
International Law (1984) pp. 490-6 at 492; C. A. Fleischhauer, 'The United Nations Treaty Series',
in Y. Dinstein and M. Tabory (eds.), International Law at a Time of Perplexity: Essays in Honour of
Shabtai Rosenne (Martinus Nijhoff Publishers, 1989) pp. 131-48.
75 YBILC (1962) vol. I, 638th meeting, p. 52. See also the Official Records of the United Nations
Conference on the Law of Treaties (1968) UN Doc.A/Conf.39/1 I/Add.2, para. 6, p. 9.
76 Supra n. 75, YBILC (1962), vol. I, 638th meeting, p. 52.
77 The Official Records of the United Nations Conference on the Law of Treaties (1968),
Summary Records of the Plenary Meetings and of the Meetings of the Committee of the Whole,
pp. 227-8: for example, the United Kingdom representatives, Sir F Vallat and Sir I. Sinclair, were
of the view that many 'agreed minutes' and 'memoranda of understanding' were not international
agreements subject to the law of treaties because there was no intention to create legal rights and
obligations, or a legal relationship. The view was also expressed as to the difference between inter-
national agreements concluded with the intention to create rights and obligations and some political
statements which set out only policy objectives and/or agreed views; on the other hand, the repre-
sentative of the Soviet Union argued that instruments such as the Atlantic Charter of Potsdam or
Yalta Agreements provided for rights and obligations, ibid., p. 226.
to international law. 78 Its Article lea) (Use of the Term 'Treaty')

included the following definition: '[a] treaty is a formal instrument of
agreement by which two or more States establish a relation under interna-
tionallaw between themselves'. Similarly to the later drafts of the ILC, the
Harvard Commentary stresses the necessity for a treaty to be governed by
international law. Thus '[t]he law governing the validity, binding force,
interpretation, application and termination of treaties between States can
not be the municipal law of any of them; it is well settled by the doctrine,
practice, and jurisprudence that this law is international law'. 79 The draft

mentioned loan agreements and the purchase of buildings, inter alia, as
examples of 'treaties' that would be excluded by this definition.
8 Conclusions
The definition of a treaty, as enshrined in the VCLT, does not reflect all
the varied forms under which a treaty may appear. This is best illustrated
by the jurisprudence of the PCI] and the IC], which provides examples
of some of the difficulties that may arise in connection with determining
whether an instrument constitutes a treaty,80 notwithstanding its desig-
nation. The IC] has never relied exclusively on the VCLT to determine
the nature of an instrument, but in each and every case has focused rather
on the legal content of the instrument in question.
The following conclusions may be drawn at this stage:
(i) the ILC (generally) was of the view that it is the content of the legal
obligation that distinguishes a legally binding agreement from a
political one;
(ii) the formal definition of a treaty, as contained in Article 2(a) of the
VCLT, does not reflect the development of multifaceted forms (both
formal and substantive) of co-operation between States;
(iii) in determining the status of an instrument, the nature of the trans-
action, the text and the circumstances of its conclusion must be taken
into consideration (the Aegean Sea and Cameroon/Nigeria cases);
(iv) interdependence of mutual obligations does not necessarily create a
bilateral engagement, and therefore not all interdependent obliga-
tions are treaties (the Eastern Greenland case);
(v) binding treaties must enumerate commitments to which parties have
consented in order to create rights and obligations in international
law for the parties (Qatar/Bahrain case).81
78 Harvard Research in International Law, Draft Convention on the Law of Treaties, 29 AJIL,
Supplement (1935) pp. 693-5. 79 Ibid., p. 693.
80 Klabbers (above, n. 2) p. 64.
81 However, difficulties arise in cases of non-legally binding instruments, some of which contain
fairly detailed provisions resembling the treaty in form. In instances of this kind, the element of
intention of the parties appears to be one of the factors to be taken into consideration (see III below).
III INFORMAL ARRANGEMENTS AND 'SOFT LAW'
I Preliminary Considerations: The Role of the Intention of the Parties

The crucial element in distinguishing between formal and informal
instruments is the element of intention, i.e., whether parties to a treaty
intended to be bound by it or not. The element of intention of the parties
has at least three different roles. The first is its role as one of the elements
of the concept of the treaty, which distinguishes binding instruments from
non-binding ones. The second is its role within the canons of treaty inter-

pretation, as suggested by, for example, Sir Hersch Lauterpacht'f and
Lord McNair. 83 The third is its role in determinations of the expression of
the will of the parties to a dispute to subject themselves to adjudication or
not. To some extent this is similar to the second role; intention may be
used in interpreting the 'agreement' between the parties to ascertain the
existence and the scope of the will of parties to seize an international
court or tribunal.
In the Qatar/Bahrain case, Bahrain advanced an argument resting on
intention, claiming that the signatories never intended to conclude an
internationally binding agreement. The Foreign Minister of Bahrain had
stated that by signing the Minutes in 1990 he had never intended to com-
mit Bahrain to a legally binding agreement, and that, according to the
Constitution of Bahrain, treaties affecting the territory of a State may
only come into effect after their positive enactment as a law. Thus, hav-
ing been aware of these strict requirements, he could not have legally
bound his State, and had only treated the signing of the Minutes as a
political statement. The Court refused to investigate further the inten-
tions of the representatives of the two governments. It found that in this
particular case the objective evidence was clear enough not to necessitate
recourse to any further means, such as travaux preparatoires:
[t]he Court does not find it necessary to consider what might have been the inten-
tions of the Foreign Minster of Bahrain or, for that matter, those of the Foreign
Minister of Qatar. The two Ministers signed a text recording commitments
accepted by their Governments, some of which were to be given immediate
application. Having signed such a text, the Foreign Minister of Bahrain is not in
82 H. Lauterpacht, 'Restrictive Interpretation and the Principle of Effectiveness of Treaties',

26 this Year Book (1949) p. 73. Sir H. Lauterpacht held a very strong the view on this matter: '[t]he
intention of the parties---express or implied-is the law. Any considerations-of effectiveness or oth-
erwise-which tend to transform the ascertainable intention of the parties into a factor of secondary
importance are inimical to the true purpose of interpretation'.
83 Lord McNair, The Law of Treaties (r st edn., Clarendon Press, 1961, reprinted 1998) p. 366:
'[m]any references are to be found ... to the primary necessity of giving effect to the "plain terms"
of a treaty, or construing words according to their "general and ordinary meaning" or their natural
signification and so forth and of not seeking aliunde for a meaning "when the terms are clear". But
this so-called rule of interpretation like any others is merely a starting-point, a prima facie guide,
and cannot be allowed to obstruct the essential quest in the application of treaties, namely to search
for the real intention of the contracting parties in using the language employed by them'.
a position subsequently to say that he intended to subscribe only to a 'statement

recording a political understanding', and not to an international agreement.v'
That finding was confirmed in the 1995 Qatar/Bahrain case. 85 According
to Klabbers:
[t]he Qatar v. Bahrain decision is important for two reasons. First, it unequivo-
cally makes clear that any commitment is a legal commitmemnt. Second, it
establishes something of a methodology for ascertaining the true nature of an
international instrument: first and foremost are its actual terms. If the text of an
instrument allows the ascertainment of commitments, then it is a legal text and

the discussion is effectively closed. It is only where the text itself is ambiguous
that recourse to other indicators appears justified.P''
Klabbers applies this statement to the general concept of the treaty.
However, the judgment of the Court may lend itself to a different inter-
pretation. It may be argued that the Court applied this only to the issue
at hand, namely the establishment of its jurisdiction. Support for this
claim may be found in the dissenting opinion of Judge Schwebel, who
was strongly critical of the findings of the Court, but referred only to the
issue of the Court's jurisdiction. He said:
[i]n the jurisprudence of this Court, jurisdiction may be conferred upon it only by
the common intention of both parties to the case ... But if that common intention is
lacking, if the intention to submit to the Court's jurisdiction is that of one but not
both parties, the Court is without jurisdiction to decide the merits of the dispute.f?
In any event, it could be said that the Court, having examined the con-
tent of the legal obligation included in the instrument in question,
decided that it laid down very clearly the parties' rights and obligations
and therefore constituted an agreement, the existence of which could be
stated without the necessity of recourse to the intentions of the parties.
2 Memoranda of Understanding
International relations call for numerous arrangements and understand-
ings between States, which may be recorded in ways which, in terms of
84 Qatar v Bahrain, Judgment of I July 1994 (above, n. 8) 121-2, para. 27. The necessity of inten-
tion of the parties to submit themselves to the Court's jurisdiction was always maintained by the
Court, see Aegean Sea (above, n. 7) where the Court said: '[r]egard must be paid to the intention of
the Greek Government at the time when it deposited its instrument of accession to the General Act;
and it was with that jurisprudence in mind that the Court asked the Greek Government to furnish
any available evidence of explanations of the instrument of accession given at that time', at p. 29,
para. 69. It was also confirmed by the Court, e.g., in the Fisheries Jurisdiction Case (Spain v Canada)
(Jurisdiction of the Court) Judgment of 4 December 1998 (1998) ICJ Reports para. 49.
85 The judgment was not without controversy. In particular, it was subject to severe criticism by
Judge Schwebel, who emphasized the failure of the Court to take into account travaux preparatoires
to ascertain the true intention of the parties. Dissenting Opinion of Judge Schwebel, Qatar v
Bahrain, Judgment of IS February' 1995 (above, n. 8) 25-39. 86 Klabbers (above, n. 2) p. 215.
87 Dissenting Opinion of Judge Schwebel, Qatar v Bahrain, Judgment of IS February 1995
(above, n. 8) 27-8.
formality, fall short of what is generally considered as constituting a

treaty.88 Such an arrangement may, nevertheless, constitute a legally bind-
ing agreement if the parties to it so desire.P? However.?? for a number of
reasons, States in practice frequently prefer that such arrangements
between them do not give rise to legal rights and obligations enforceable
under international law. Such arrangements, and the documents in which
they are recorded, have been referred to variously as, for instance, 'gentle-
men's agreements', 'memoranda of understanding' or 'informal instru-
ments'. The reasons for this preference and uses which these of

agreements serve, as well as the non-legal effects they may have, lie rather
in the purview of the diplomatist or political scientist than of the lawyer.
The issues which are, strictly, relevant to the lawyer, are, firstly, how to
distinguish those arrangements which do constitute legally binding agree-
ments from those which do not; and, secondly, whether, notwithstanding
that the arrangements themselves are not directly binding on the parties,
they may have some secondary or indirect legal effect.?'
With regard to the first of these issues, the decisive factor distinguish-
ing binding treaties from non-binding instruments is the intention of
parties, that is, whether the instrument in question was intended to cre-
ate international rights and obligations between the parties. In this
respect, there are no special rules relating to the type of informal instru-
ment here under consideration.
As mentioned earlier, the ILC considered that the element of the inten-
tion of the parties was included in the phrase 'governed by international
law' .9 2 The IC] confirmed the importance of intention of the parties in
defining the character of any given international instrument and emphasized
its independence of the form taken by the treaty. It observed that ' ... the
question of form ... is not a domain in which international law imposes any
88 R. R. Baxter, 'International Law in Her Infinite Variety', 29 ICLQ (1980) pp. 549-66; O.
Schachter, 'The Twilight Existence of Nonbinding International Agreements', 71 AJIL (1977) pp.
296-304; F. Roessler, 'Law, De Facto Agreements and Declarations of Principle in International
Economic Relations', 21 German Yearbook of International Law (1978) pp. 27-59; C. Lipson, 'Why
are some international agreements informal?' International Organisation (1991) pp. 495-538; F.
Munch, 'Comments on the 1968 Draft Convention on the Law of Treaties', 29 Zeitschrift fur
Ausldndisches Offentliches Recht und Viilherrecht (1969) pp. I - I I ; P. M. Eiseman, 'Le gentlemen's
agreement comme source du droit international', 106 Journal du Droit International (1979) pp.
326-48; ]. Klabbers (above, n. 2) pp. 121-56.
89 YBILC (19 66) vol. II, Report of the ILC to the General Assembly on the work of its eighteenth
session, Doc.A/CN.4/191, p. 188: In its 1966 Commentary to Draft Articles the ILC, explained that 'very
many instruments in daily use such as an "agreed minutes" or a "memorandum of understanding", could
not appropriately be called formal instruments, but they are undoubtedly agreements subject to the law
of treaties. A general convention on the law of treaties must cover all such agreements ... ' .
9° See above, I, 2, (c).
91 The only possible legal effect of non-binding agreements would seem to arise by way of estop-
pel and in relation to the doctrine of good faith. Discussion of these difficult doctrines is beyond the
scope of an essay on the nature of treaties, but see A. Aust, 'The Theory and Practice of Informal
International Instruments', 35 International and Comparative Law Quarterly (1986) pp. 807-812,
and A. Aust, Modern Treaty Law and Practice (Cambridge University Press, 2000), p. 45-46.
92 Ibid., para. 6, p. 189.
special or strict requirements', 93 and that '[w]here ... as is generally the case
in international law, which places the principal emphasis on the intention of
the parties, the law prescribes no particular form, parties are free to choose
what form they please provided their intention clearly results from it'. 94
In the literature, the role of the intention of the parties in determining
whether an obligation is binding is also treated as important. For example,
Fawcett considered that an essential element of a legally binding interna-
tional agreement (in contradistinction to political obligations such as treaties
of alliance) is the intention of the parties to create legal obligations between

them.f" Oppenheim's International Law also relies upon the intention of the
parties: '[i]t is suggested that the decisive factor is still whether the instru-
ment is intended to create international legal rights and obligations between
the parties-an element which the International Law Commission regarded
as embraced within the phrase "governed by international law" '.96
It also seems well established as a general rule that the nature of the par-
ties intention is to be ascertained from all the circumstances of each case, no
particular factor necessarily being decisive, though it seems to emerge from
the jurisprudence of the IC] that substantial priority is accorded to the
actual terms of the agreement. There is no reason to distinguish memor-
anda of understanding from any other form of agreement in this respect.P?
As noted above, the judgment of the IC] in the Qatar/Bahrain case
raised the question of the existence of informal agreements, as well as the
question of the possibility of using objective criteria to determine the legal
character of an instrument. Klabbers, for example, puts forward an inter-
esting but controversial argument which denies the possibility of the exis-
tence of instruments which resemble treaties but are not treaties: '[t]hey are
drafted in similar ways, concluded in similar ways, complied with or vio-
lated in similar ways, and often even terminated in similar ways'. 98 He
argues that the practice of States is inconsequential and insufficient, stat-
ing that' ... it is doubtful whether States can simply conclude treaties and
nevertheless agree that those treaties are not treaties but something else'. 99
However, in modern practice States often employ instruments that have the
form of treaties but are not treaties in substance. We cannot disregard what
States do in respect of treaty-making and conclude that if the practice does
not confirm the theory, States have no right to act in a certain manner.
93 Nuclear Tests cases (above, n. 10) 267-8; Temple of Preah Vihear case (above, n. 31) 31-2.
94 Temple of Preah Vihear case (above, n. 3 I) 3 I. The Court was consistent in stressing that the
designation of a treaty was not the decisive factor in defining its legal character; South West Africa
cases (above, n. I) 331.
95 Fawcett (above, n. 4) 385-6.
6
9 Sir R. Jennings, Sir A. Watts (eds.), Oppenheim's International Law (oth edn., Longman, 1996)
vol. 2, p. 1202; Lord McNair, Law of Treaties (above, n. 83) p. 15; S. Rosenne, Developments of the
Law of Treaties I945-I986 (Cambridge University Press, 1989) pp. 85-123.
97 For a discussion of some possible relevant circumstances in the context of memoranda of
understanding etc., see Aust 'Modern Treaty Law and Practice', op. cit. supra, n. 9 I, pp. 27-30.
8
9 Klabbers (above, n. 2) p. 13 I. 99 Ibid., p. 130.
On the other hand, an issue raised by Klabbers relates to the possibil-

ity of informal instruments having binding effect on the parties by the
way of workings of good faith and/or estoppel. He denies such a possi-
bility on the ground that these are non-legally binding instruments,
which therefore can contain no legal obligations at all, and relies on the
judgment of the Ie] in the Nicaragua v Honduras case in which it said
that good faith 'is not in itself a source of obligation where none would
otherwise exist'. 100 The same view has also been expressed by other writ-
ers, such as Bothe, who said that: '[gJood faith is a legal concept, and bas-

ing respect for non-legal obligations on a legal concept would not seem to
be appropriate'. 101 Nonetheless, another view has been expressed to the
effect that, for example in cases in which the nature of the legal obligation
is unclear, 'it is believed that, the determination of the extent of the obli-
gation of a State, although lying within the competence of the interested
State, must take place in accordance with legal duty to act in good faith' . 102
According to Keller, Klabbers's main arguments are based on the
premises that:
international relations are fully enclosed within the normative framework of
international law to the extent that law is the only possible normative language
of international politics and that ... there are simply no alternative normative
systems, such as morality, courtesy or politics on which one might found such an
agreement, even if international law could be excluded. 1°3
As Keller points out, there is no rule of international law which would
prohibit the creation of non-legally-binding agreements, and States and
international organizations are free to do so provided that they do not
breach any legal obligation in the process. Keller is further of the view that:
[i]n seeking alternative 'normative systems' Klabbers seems to overstate what is
actually required. For it is not clear why, in the rough and ready world of interna-
tional politics, considerations of mutual advantage, trust and reputation should be
deemed to be an insufficient source of obligations, if parties concerned take them
to be sufficient for their particular purposes. Indeed these extra-legal considera-
tions play an equally important role in the fulfilment of treaty obligations
and further:
... principles on which a non-legally binding agreement might operate, concepts
of breach and invalidity are easily adapted from the law of treaties to flesh out
the expectations of the parties. That the treatment of these matters would be
still less certain or predictable would apparently be a risk the parties are pre-
pared to accept. 104
100 Border and TransborderArmed Actions case (Nicaragua v Honduras) (Jurisdiction and Admissibility)
Judgment of 20 December 1988 (1988) IeJ Reports 69, 105.

101 M. Bothe, 'Legal and Non-legal Norms-a Meaningful Distinction in International
Relations', I I Netherlands Yearbook of International Law (1980) pp. 65-95 at 95·
102 Oppenheim's International Law (above, n. 96) p. 1202.
1°3 See review of the book of ]. Klabbers by P. Keller, in 47 ICLQ (1998) p. 241. 1°4 Ibid.
The lack of enthusiasm on the part of Klabbers for non-legally binding

instruments and soft law is also not shared by Sir I. Sinclair, who states
that in the practice of States, it often happens that for reasons of expedi-
ency it is necessary to produce a text that 'will, in order to satisfy claimed
political imperatives, simultaneously bear the appearance of a treaty
instrument without in fact constituting one'. 105
In conclusion, the judgment of the Court in the Qatar/Bahrain case,
taken at face value, could support the general views expressed by Klabbers.
The Court rejected the argument of Bahrain based on the lack of intention

to be bound by the 1990 Minutes. The Court based its test of binding force
of the document on objective considerations. A close analysis of the judg-
ment, however, indicates that the Court did not base its decision to deter-
mine the character of the Minutes on its form or on the intention of the
Parties but on the commitment and the corresponding consent of the par-
ties as to the content of the obligation at hand. It is worth noting that, while
the Court did define the 1990 Minutes as an agreement, the real emphasis
of the Judgment was on the binding nature of the obligation they contained.
From this it may be inferred that (perhaps) non-binding instruments (the
present author is mindful that the Court did not address this matter) may
include binding obligations. A different view may be expressed that there
was already, agreed by Parties, a general obligation arising from previous
dealings, therefore the Doha Minutes were not the only self-standing instru-
ment in question.F" Indeed, the Court is very explicit in stressing that:
the 1990 Minutes include a reaffirmation of obligations previously entered into;
they entrust King Fahid with the task of attempting to find a solution to the dis-
pute during a period of six months; and, lastly, they address the circumstances
under which the Court could be seized after May 199 I. Accordingly, and con-
trary to the contention of Bahrain, the Minutes are not a simple record of a
meeting, similar to those drawn up within the framework of a Tripartite
Committee, they do not merely give an account of discussions and summarize
points of agreement and disagreement. They enumerate commitments to which
Parties have consented. Thus they create rights and obligations in international
law for the Parties. They constitute an international agreement. 1°7
It follows that in order to determine the character of an international
instrument, the content of the obligation therein must be scrutinized, on
a case-by-case basis. It is thus impossible (and indeed not even in accor-
dance with State practice) to assume an all-encompassing view that all
international instruments are binding. Once again it has to be reaffirmed
that the designation of an instrument cannot serve as an indicator as to
the nature of the legal obligation therein. The following view reflects the
position adopted by the Court: '[t]he fact that the interested State is the
judge of the existence of the obligation is, although otherwise of consid-
1°5 See review of the book of ]. Klabbers by Sir I. Sinclair, in 97 AJIL (1997) p. 749. See also
Aust Modern Treaty Law and Practice, op. cit. supra, n. 91, p. 41.
106 A view expressed by Professor J Crawford in discussion with the author of the essay.
1°7 Qatar v Bahrain, Judgment of 1 July 1994 (above, n. 8) para. 25.
erable importance, not of decisive relevance for the determination of the

legal character of the instrument'. 108
Another problem also considered by Klabbers 'P? is the question of
so-called administrative agreements concluded between governmental
agencies or departments. The main problem of interest here is whether
these agreements bind States or only departments of the government.
This question concerns not only the law of treaties but also that of State
responsibility. The actions of which organ are binding on the State, which
is an abstract entity that is not capable of an independent action and which

can act only through its agentsi"!? The starting point to the answer is
Article z of the zoo r ILC Articles on State Responsibility. I I I This Article
lists as one of the two necessary elements of a wrongful act its attributabil-
ity to the State under international law (the second element being a breach
of an international obligation of a State). The Articles define attribution
to the State of the conduct of its organs in a broad manner. Of special
importance in the context of administrative agreements is Article 4
(Conduct of Organs of State) which reads as follows:
(r) The conduct of any State organ shall be considered an act of that State under
international law, whether the organ exercises legislative, executive, judicial or
any other functions, whatever position it holds in the organisation of the State,
and whatever its character as an organ of the central government or of a territo-
rial unit of the State; (z) An organ includes any person or entity which has that
status in accordance with the internal law of the State.
Against this background, Klabbers wonders whether administrative agree-
ments concluded by State agencies may generate State responsibility for
the State by creating international legal obligations that are binding on it,
or whether they do not create international legal obligations for the State
but only bind the respective agency. In the latter case, State responsibility
would not arise in the event of their breach. Klabbers believes that the fact
that individual departments or agencies may legally bind themselves under
international law should not be understood as according to them interna-
tional legal personality (or in other words treating them as international
law subjects capable of bearing international rights and obligations), and
he rejects this hypothesis. He also rejects the possibility that there is a third
legal order (apart from the national and international orders), 'which could
for all practical purposes be called international agency law'. He concludes
rightly that providing that administrative agreements generate legal rights
and obligations, they become the 'onus of the State'. I 12
108 Oppenheim's International Law (above, n. 96) p. 1202.

10
9 Klabbers (above, n. 2) pp. 97-104.
I lOy BILC (1973) vol. I I, Report of the ILC to the General Assembly on the work of its twenty-fifth
session, Doc. A/90 I o/Rev r , p. 169. See also Advisory Opinion on Certain Questions Relating to Settlers
of German Origin in the Territory Ceded by Germany to Poland (1922-1924) pel] Ser. A/B, no. 6, p. 22.
See also Klabbers, p. 100.
I I I Available at <http://www.law.cam.ac.uk/rcilILCR/DrafArts98.htm.>; Crawford (above, n. 10)
commentary, pp. 94-9. 112 Klabbers (above, n. 2) p. 101 and p. 103.

The practice of States supports this view, expressed by many authors.
Lord McNair was of the opinion that these administrative agreements do
bind States: '[w]hat is important is that this practice must not be allowed to
obscure the fact that the real contracting parties are States'; and according
to him, '[i]t is necessary to insist upon this point, because any notion that
an Agreement expressed to be made between Governments or
Government Departments binds only those Governments might have a
tendency to impair the binding character of such agreements by encour-
aging the subsequent Governments, perhaps of a political complexion

completely different from the Government which made the agreement, to
repudiate them'. I 13 The possibility of a separate, third legal order must
also be rejected. The relations between States are contained in two legal
orders: national and international. I 14 Thus, the conclusion to be drawn is
that the legal obligations created by the administrative agreements bind the
State as a whole, and not the agency or a department in question, since the
latter are not subjects of international law. 115
3 'Soft-law'Instruments
The phenomenon of so-called 'soft law' is the result of the varied rela-
tionships between States. As has been said, the 'subtlety of the processes by
which contemporary international law can be created is no longer adequately
captured by reference to the orthodox categories of custom and treaty'. I 16
According to Dupuy, it was Lord McNair who coined the term 'soft
law' . 117 There are many proponents of the view that there are some kinds
of 'arrangements' or 'undertakings' constituting 'soft', 'fragile' or 'weak'
law that are generally complied with, but which are free from the pres-
sures of the principle pacta sunt seroanda, as well as from the rules of
customary international law. Perhaps not surprisingly, many of these
undertakings are drawn up under the auspices of international organiza-
tions. These arrangements are made intentionally ambiguous by their
drafters, and it has been observed that this results in a corresponding lack
of clarity in the way they are discussed or written about. 1 18 The ambiguity
of such 'arrangements' or 'undertakings' is widely admitted in doctrine.
113 Lord McNair (above, n. 83) p. 20.

114 Klabbers (above, n. 2) p. 102; J A. Barberis, 'Nouvelles Questions Concernant la Personnalite
juridique Internationale', 97 Recueil des Cours (1983-1) pp. 145-304, at p. 176.
115 E. W. Vierdag, 'Spanningen tussen recht en praktijk in het verdragenrecht', Preadvies
Nederlands Verening voor Internationaal Recht (Kluwer, 1989) pp. 49-52.
116 A. Boyle, 'Some Reflections on Relationship of Treaties and Soft Law', in V. Gowland-
Debbas (ed.), Multilateral Treaty-making: The Current Status of Challenges to and Reforms Needed
in the International Legislative Process (Martinus Nijhoff Publishers, 2000) p. 25; On the issue of the
legal character of non-binding UN GA Resolutions see the fundamental work of K. Skubiszewski
in vol. 61-1, Annuaire de l'Institute de Droit International (1985), Session of Helsinki. In particular,
as to their possible treaty-making character see Rapport Provisoire, pp. 136-49, paras. 12-13.
117 R. J Dupuy, 'Declaratory Law and Programmatory Law; From Revolutionary Custom to
"Soft Law"', in R. J Akkerman, P. J Krieken and C. O. Pannenborg (eds.), Declarations on

Principles, A Quest For Universal Peace, Liber Amicorum Discipulorumque, Professor dr. B. V. A. Roling
(Sijthoff, 1979) pp. 247-57 at 252. 118 R. R. Baxter (above, n. 88) pp. 556-7.
Sir Robert Jennings observed that the same provisions are used as evi-
dence by opposing parties before international tribunals in support of
their conflicting claims, since each party can give ambiguous provisions
its own slant. 119 He points out that the tests applicable to ascertaining the
norm of customary law or a treaty are irrelevant since much of the new
'law' is not custom, and 'it is recent, it is innovatory, it involves topical
political decisions, and it is often the focus of contention'. 120 Since soft-
law instruments are thus highly susceptible to varying interpretations,
they provide for their drafters a great deal of freedom in arguing their

way out of compliance with such instruments. It may be said that soft
law may occur in any circumstances where States wish to accord signific-
ance to something agreed upon but which is plainly intended to amount
to less than an expression of intention to be bound by it. 121
Supporters of the concept of soft law believe that, with its flexible
character, it is a helpful technique in situations where States want to act
collectively but at the same time 'do not want to fetter their freedom of
action'.122 Examples of soft law can be found especially in environmen-
tal law. International economic soft law is also common.P'' In fact, it was
first used in this field of law, in particular in dealing with economic issues
that were thought to be within the sovereign power of States.P" The
nature of soft law was perfect for uses such as combining collective reg-
ulations and restraint in economic dealings with flexibility and freedom
to manoeuvre as and when changed circumstances required.
International economic relations had to accommodate almost irrecon-
cilable differences between the approaches of different legal systems and
the different goals of a highly diverse and vastly enlarged international
community. Thus, States were faced with the problems of achieving an
agreement on universally acceptable rules and an unwillingness to under-
take legal obligations. As a rule, States are willing to take legal obligations
when they expect to fulfil them. 125 It may happen that States try to avoid
legally binding obligations because of formal requirements necessary to
creating and terminating them. 126
Other authors reject the concept of soft law and claim that either law
is binding or it is not law at all. 127 This view is maintained by many who
regard soft law as detrimental to the system of international law: as
119 R. Y Jennings, 'What is International Law and How do We Tell It When We See It?',
37 Annuaire Suisse (1981) pp. 59-88, at p. 67. 120 Ibid.
121 G. M. Borchardt and K. C. Wellens, 'Soft Law in the European Community Law',
14 European Law Review (1989) pp. 267-321, at p. 269.
122 P. Birnie, 'Legal Techniques of Settling Disputes. The Soft Settlement Approach', in W. Butler
(ed.), Perestroika and International Law (Kluwer Law International, 1990) pp. 175-85, at p. 184.
123 I. Seidl-Hohenveldern, International Economic Law (Nijhoff, 1989) pp. 42-5.
124 G. Schwarzenberger, 'The Principles and Standards of International Economic Law', Recueil
des cours (1966-1) pp. 5-89, at pp. 27-9. 12

5 Bothe (above, n. 101) p. 91.
126 T. Gruchalla-Wesierski, 'A Framework for Understanding Soft Law', 30 McGill Law Journal
(1984) pp. 38-88, at p. 41.
127 P. Weil, 'Towards Relative Normativity in International Law?', 77 AJIL (1983) pp. 413-42, at
PP·4 16-17·
Lysen said, 'one legal rule cannot be more legal than another'. 128 Others
find this approach unjustified because '[soft law] has great strength as a
conflict resolution device ... '. 12 9 Yet other authors deny even the exis-
tence of soft law, because 'it is not supported by either State practice or
judicial practice'; and 'it lacks plausible theoretical underpinnings and
even justifications, and most importantly, its application falls victim to
the same binary way of thinking which traditionally characterised law'. 130
The term soft law is viewed by some as unfortunate since it suggests a
source of law of inferior value. The concept of soft law escapes the tra-

ditional rules of legal classification, and attempts to explain the nature of
soft law have not been entirely successful or persuasive. Some scholars
believe that both legal and non-legal norms may be created within the
realm of soft-law instruments, while others restrict it to containing only
non-legal norms.F" Others see the term 'soft law' as referring to two
things, the first being the 'soft' content (language) of instruments which
are otherwise hard in nature, that is, formally binding in law (for exam-
ple, treaty provisions), and the second being the 'soft' nature of certain
international instruments themselves (for example, joint declarations;
joint communiques; various acts of international organizationsj.P" Some
other writers do not attempt to coin a definition of this phenomenon but
satisfy themselves by observing that soft law gives an impression that
'something is missing in the legal binding nature of law as we know it
from the daily life, and even international life'. 133
The legal effects, if any, of instruments of soft law are as unclear as
those that may be attached to informal instruments. It is sometimes noted
that soft-law instruments may have legal effects arising from estoppel. 134
According to Virally, for instance, the principle of estoppel results from
the general principle of bona fides, on which political obligations are
based.I" The same considerations that apply to informal agreements in
this respect also apply to soft-law instruments. In the view of the present
128 G. Lysen, 'The Joint Declaration by the EEC and the CMEA', North Carolina Journal of
International Law and Commercial Regulations (1989) pp. 369-89, at p. 376.
12
Birnie (above, n. 122) p. 183.
9 13° Klabbers (above, n. 2) P.I64.
1
13 M. Virally (below, n. 135), rapport provisoire, pp. 166-257, rapport definitive, pp. 328-52.
132 J, Sztucki, 'Reflections on International "Soft Law" " in Festchrift Till Lars Hjerner, Studies in
International Law (Norstedt, 199 0) pp. 549-75.
133 A. J, P. Tammes, 'Soft Law', in Essays on International and Comparative Law in Honour of
Judge Erades (Nijhoff, 1983) p. 187.
134 Y. van der Mensbrugghe, 'Legal Status of International North Sea Conferences' in
D. Freestone and T. Ijstra (eds.), North Sea: Perspective on Regional Environmental Cooperation,
International Journal of Estuarine and Coastal Law, Special Issue (1990) p. 21.
135 M. Virally, 'La distinction entre textes internationaux ayant une portee juridique dans les rela-
tions mutuelles entre leur auteurs et les textes juridiques qui en sont depourvus' (rapport definitive)
vol. 60-1 Annuaire de L'Institute de Droit International (1983) Session de Cambridge, p. 356: '[e]n
consequence, il est soumis aux obligations juridique resultant de l'estoppel, lorsqu'il a cree les
apparences d'un engagement juridique auxquelles une autre partie s'est fiee et que les conditions
auxquelles le droit international subordonne l'apparition de telles obligations sont remplies'.
author, however, the applicability of the principle of estoppel (that is an

institution with specific independent legal effect, unlike good faith) to a
non-binding instrument, is doubtful. As to the general principle of good
faith, from which estoppel results, its usefulness may also be considered
of limited value if we adhere to the concept that it is not itself an inde-
pendent legal principle. It must also be observed that the very link
between estoppel and the principle of good faith is disputed by some
authors. McGibbon, for example, sees estoppel as an independent ground
for evaluating legal relationship, distinct from good faith. 136

The author of the present study, having conducted a research in rela-
tion to certain international environmental law declarations relating to
regional co-operation between the Baltic Sea States concerning environ-
mental issues, came to the conclusion that if any legal effects can be attrib-
uted to these soft law declarations (see below), it is only the principle of
good faith. On the basis of this principle, concerned States pledge to take
all appropriate measures to comply with the contents of these declara-
tions. But this is as far as it goes, and the principle of estoppel, to the best
of the knowledge of the present author was never even considered by the
States concerned. All the interviewed lawyers and diplomats were anyway
very dubious about attaching any significant legal effects to such declara-
tions and treated them as an indication of certain future aspirations, which
indeed resulted in conclusion of the 1992 Helsinki Convention. 137
The legal workings of soft law were scrutinized closely by jurists in
relation to various declarations, in particular in the field of international
environmental law, such as the 1972 Stockholm Declaration and the 1992
Rio Declaration. For example, the Baltic Sea was the subject of many
such declarations (for instance the 1988 Ministerial Declaratiori'P and
the 1990 Baltic Sea Declarationj.P? Similarly, numerous declarations
were adopted in connection with the North Sea (the Bremen Declaration,
the London Declaration, and the Hague Declaration). Y Van der
Mensbrugghe examined the North Sea Declarations, concluding that
their legal status is 'controversial'. 14° Indeed, they have an imprecise and
ambiguous legal nature and purpose: some are intended only to supply
information, some to express an agreed policy, and some actually attempt
to impose legal obligations. According to the same author, they are
regarded with suspicion by classical international lawyers. Declarations
may be unilateral, bilateral or multilateral. It would an oversimplification
to claim that only environmental law has given rise to a significant number
6
13 I. McGibbon, 'Estoppel in International Law', 7 ICLQ (1958) pp. 468-513 at 513.
137 Helsinki Convention on the Protection of the Marine Environment of the Baltic Sea Area.
13
8 Baltic Sea Environmental Proceedings, No. 26 (Baltic Sea Marine Environment Protection
Commission (HELCOM) 1988) pp. 30-6.
139 Ronneby, Sweden, 1990, Conference on the Baltic Sea Environment <http://www.helcom.fi/
helcom/declarations/r 990.pgf>.
14° van der Mensbrugghe (above, n. 134) pp. 15-22.
of declarations: for example, mention must be made also of the 1978

Bonn Declaration on Hijacking.
On the international level, the above-mentioned declarations were not
registered in accordance with Article 102 of the United Nations Charter.
However, at the national level, at least in relation to the Baltic Sea
Declarations, the practice of States has varied. The declarations were not
published in any way in the former communist States. In Sweden,
Denmark, and the Federal Republic of Germany, the declarations were
published in official journals. In the FRG, the Ministerial Declarations

were in fact translated into the national legal order by an ordinance
('Bekanntmachung') of the Minister of the Environment.v" Moreover, in
the summer of 1988, the Minister of the Environment presented a r o-point
catalogue for strengthening efforts to protect the Baltic Sea as a response to
the Ministerial Declaration. The plan presented detailed requirements
for reducing nutrient inputs from sewage treatment plants. In relation to
the reduction of dangerous substances, the Minster announced a state-of-
the-art limitation of hazardous substances in industrial waste. In 1989, the
FRG Parliament approved the programme. In Sweden, Denmark and
Finland the Declaration was included in the long-term Action Plan on
the Protection of the Environment, and approved by their Parliaments.
In the former Soviet Union a programme based on the Ministerial
Declaration was set up for the Baltic Sea region for the period up to 1996,
which took into account about five hundred of the most significant sources
of pollution of the sea and provided, in expenditure, up to 1.5 billion
roubles for the construction of a cleaning system. Furthermore, in order
to implement the Ministerial Declaration, cleaning plants for municipal
sewage were provided for in the main cities in the period 1992- I 993. 14 2
In Poland, in contrast, no action whatsoever was taken to implement this
Declaration.
The question arises whether the canons of interpretation of the VCLT
can be used to interpret the content of these types of instruments. It
appears, in the light of the ICI's interpretation of the 1990 Minutes in
the Qatar/Bahrain case, that the answer should be, yes. In the view of the
present author, however, the application of the VCLT rule of interpreta-
tion to non-binding instruments is not straightforward,since other
principles of the law of treaties are not applicable, such as termination,
registration etc. In fact, as noted above, these requirements are often the
reason that States prefer to rely on soft-law instruments in order to avoid
strict procedural rules attached to treaties.
1
14 Bekanntmachung einer Ministerdeklaration und der Empfehlungen der Baltic Sea Marine
Environment Protection Commission-Helsinki, HELCOM 9/1 bis 9/1 I.
142 J. J. Kolbasov, 'Provovyje Mery Okhrany Moriia Ot Zgrazieniia S Sushi' (Legal Measures for
the Protection of the Sea from Land-Based Pollution), a paper presented at the International
Conference on Ecology and Law in the Baltic Sea Region: Sources and Developments, held in Riga,
Latvia, 1990, p. 9 (not published). On file with the author.
Therefore, the question may be asked why one particular set of rules (on
interpretation) is applicable with the exclusion of all other rules. There is
a different view expressed, such as Schachter's, who argued that it would
be convenient and reasonable to apply the rules for the interpretation of
treaties, in so far as they are not at variance with the non-binding nature of
such instruments. 143
Taking the ordinary meaning of the Ministerial Declaration, the lan-
guage indicates that the undertakings intended by the signatories are gen-
erally policy-oriented. Thus, the Ministers of the Environment of the

Baltic States declare their intention to 'establish'; 'intensify efforts'; 'take
appropriate action'; 'develop methodologies'; 'respect relevant recom-
mendations'; 'promote' and 'co-operate'. The Declaration does not have
any annexes that would specify how these goals are to be achieved. The
only section in the whole of the Declaration that describes somewhat
more specific goals refers to the general need to reduce the load of pollu-
tants, especially heavy metals and toxic or persistent organic substances
and nutrients as soon as possible, but no later than 1995, and it states that
a reduction of, 'for example', 50 per cent in such discharges would be
desirable. Even the wording of these more detailed undertakings is rather
imprecise and, undoubtedly, further legal acts will be required to trans-
form these political decisions into specific commitments, capable of
being implemented, for example, though national legislation.
The Declaration was merely intended as a political act that was
(emphatically and explicitly) non-binding. Indeed, the intention of the
Baltic States was to diminish the pollution of the Baltic Sea without the
use of any legally binding instruments. This was considered significant in
and by itself, and, in view of the circumstances present at that time, more
important than a commitment to fulfil obligations with clearly defined objec-
tives. Thus, the Declaration, as evidenced by further practice, served as a
common ground for further discussions, particularly as the Participating
States had undertaken to report on their progress in its implementation.
Finally, it was believed that the non-binding nature of the Declaration
would guarantee a more sincere approach in determining generally the
needs of the Baltic Sea and compliance with the Declaration.
The Bonn Declaration on Hijacking'vt was signed by seven industrialized
countries that reached an agreement to boycott air traffic of any countries
143 Schachter (above, n. 88) pp. 302-3.

144 The Declaration reads as follows: 'The heads of State and Government concerned about the
terrorism and taking of hostages, declare that their Governments will intensify their efforts to com-
bat international terrorism. To this end, in cases where a country refuses extradition or prosecution
of those who have hijacked an aircraft and/or not returned such aircraft, the heads of State and
Government should take immediate action to cease all flights to that country. At the same time, their
Governments will initiate action to halt all incoming flights from that country or from any country by
the airlines of the country concerned. The heads of State and Government urge other Governments to
join them in this commitment.' Canada, Federal Republic of Germany, France, Italy, Japan, the United
Kingdom, the United States in 17 ILM (1978) p. 1285.
offering sanctuary to hijackers. This Declaration appears to make a very

strong statement of intent. Under thorough analysis, however, it seems
that this Declaration also is not binding in nature. The language is
imprecise and weak ('intensify', 'will initiate', and 'should take') although
the goals seem to be clearly defined, the means for achieving these goals
are not clearly spelled out.r" The language used in this Declaration to
express obligation suggests the imposition of moral rather than legal
duties, and it is suggestive of a document of a political, not a legal,
nature.H" Although the Declaration was signed by the Prime Ministers

of, for example, Italy, the United Kingdom and Canada, the Presidents
of the United States and France and the Chancellor of the Federal
Republic of Germany, the weak, ill-defined and imprecise language, dif-
ferent from the one employed in treaties, indicates that the Declaration
does not contain any binding obligations. 147
Another question is how the Ministerial Declaration on the Baltic Sea
compares with the Bremen, London and the Hague Declarations on the
North Sea. 148 The text of the Baltic Sea Declaration is even more vague
and imprecise than the wording of these instruments. Moreover, these
other Declarations have annexes that are sometimes very precise in
requiring specific action to be taken 'in the framework of the existing bod-
ies, conventions and programmes', despite the fact that the intention of the
parties was to make them non-binding.l"? The London Declaration, for
example, contains some rather concrete provisions, such as one requiring
the parties 'to take steps to minimise by no less than 65 percent the use
of marine incineration by I January 1991' (Article XVI paragraph 24b)
and to 'phase out such operations by 31 December 1994, and to seek
agreement to such a date within the Oslo Convention by 1 January 1990'
(Article XVI paragraph 24(C)). It thus appears that the wording used is
sufficiently well hedged in order to allow avoidance of duties without
being seen to violate the Declaration. Thus, the Declaration appears to
record political decisions, which would have to be made more precise
prior to their implementation for them to constitute legal obligations.
145 ]. ]. Busutill, 'The Bonn Declaration on International Terrorism: A Non-binding Agreement

on Aircraft Hijacking', 31 ICLQ (1982) pp. 474-87 at p. 485.
n
14 Ibid., p. 487; van der Mensbrugghe (above, n. 134) p. 18.
'47 Of historical value is at present the character of the EEC-CMEA Joint Declaration. Both
Lysen and Bloed erroneously conclude from the language of the Declaration and the manner of its
negotiation and approval by the EC that the Parties clearly intended the Declaration to be legally
binding between them and that it was a 'simple' agreement on the establishment of official relations
between the two parties. See Lysen (above, n. 128) p. 388. A. Bloed, The External Relations of the
Council for Mutual Economic Assistance (Martinus Nijhoff Publishers, 1989) p. 198. The language of
the Declaration is vague and ill-defined therefore it is difficult to see how it can give rise to treaty
obligations. The language used was clearly indicative of political obligations.
8
14 Text of Declarations in: D. Freestone and T. Ijlstra (eds.), The North Sea Basic Legal
Documents on Regional Environmental Co-Operation (Kluwer Academic Publishers, 1991) pp. 3-40.
'49 van der Mensbrugghe (above, n. 134) p. 20.
The Bremen and London Declarations similarly indicate 'objectives'

which have to be further pursued, along the lines set out in the relevant
documents. The general language used in both Declarations is similar to
that of the Ministerial Declaration. The Ministers decide 'to confirm', 'to
ensure', 'to accept the principle', ' to take or intensify measures', 'to invite
the appropriate international bodies'. The Hague Declaration is not very
different from the Bremen and London Declarations. Despite the fact that
it contains a comprehensive set of annotations and annexes, with certain
concrete aims, the legal obligations imposed by the Declaration remain

rather vague. The preamble of the Declaration lists the two main tasks of
the Conference from which it arose: to assess whether previously adopted
measures will be met, and 'to decide ... which further initiatives needed to
be taken'. In the context of these 'future initiatives', the Declaration
records the participants' decision to adopt a comprehensive set of 'com-
mon actions' to reduce inputs of hazardous substances. Some of the goals
of these actions are policy-oriented and vague, ISO while others are more
specific. 151 Despite this specificity, however, the document as a whole is a
blueprint for the desirable future and does not record the signatories'
agreement to implement the actions listed through national laws, but
rather expresses their desire that such actions be taken. Even the operative
language used in this Declaration suggests its policy-oriented character.
Thus, the parties are 'urged' to 'take initiatives', 'exchange information',
'take measures' and 'co-operate'.
The view has been expressed that although the documents are non-
binding, the parties have to act in good faith when attempting to carry
out such Declarations by transforming them into legal instruments.U" In
the view of the present author this Declaration, like the one discussed
above, was not binding. Its language was policy-oriented, vague and ill-
defined. The States, having adopted this Declaration, did not implement it
even to the extent they have done in respect to the Ministerial Declaration.
However, these two documents gave rise to the 1992 Convention on
the Protection of the Marine Environment of the Baltic Sea Area
(the 'Helsinki Convention'). Many of the postulates included in the
Declarations were better defined and made more precise in this Convention,
such as rules on the reduction of hazardous waste and on the principles
of mutual co-operation. The role of soft-law instruments in such a
15° One of these common actions is 'to agree' (presumably sometime in the future) that discharges
of substances that are persistent, toxic, and liable to bioaccumulate should, before the year 2000, be
reduced to levels 'that are not harmful to man or nature'.
151 The Declaration noted the desirability of achieving a significant reduction between 1985 and
1995 (of SO per cent or more) of inputs via river estuaries for each of the substances in Annexe r A,
and atmospheric emissions by 1995 of the substances specified in Annexe r A, if achievable by apply-
ing the best available technology. Similar provisions were adopted in relation to substances causing
a major threat to the environment, and to substantial reductions in the quantities of pesticides.
152 van der Mensbrugghe (above, n. 134) p. 21.
process was defined by Boyle as 'significant, only because they are the
first step in a process eventually leading to a conclusion of a multilateral
treaty'.153
Although, as indicated above, the character of soft law-whether 'law'
or 'non-Iaw'-is not at all clear, its main features (as to which there is some
degree of consensus in the doctrine) may be summarized as follows: soft
law is not binding; soft law consists of general norms or principles but not
rules; and soft law is not readily enforceable through binding dispute res-
olution mechanisms. 154

Developments in recent years may have slightly changed the generally
negative attitude towards soft law. As Professor Boyle argues, soft law
does fulfil a very useful role in the contemporary law-making process
because it has several attractive features that makes it a useful alternative
to treaties. For example, it is easier to reach an agreement in the case of
a soft-law instrument than a treaty, the consequences of non-compliance
being less severe; States may avoid the need to subject the instrument to a
domestic ratification process, and escape democratic accountability within
that process; and soft-law instruments are more susceptible to amendment
than treaties. The usefulness of a treaty as a law-making instrument, on the
other hand, may be greater in the event of new law-making. It cannot be
denied, however, that the soft-law instruments are good evidence of State
practice and opinio juris in support of customary law.155 They may not be
binding but they may be an element in the process of the formulation of
the uniform conviction of States that certain principles are law, such as, in
the view of the present author, the 1992 Rio Declaration, which assists the
ongoing (not yet completed) process of crystallization of the principle of
sustainable development.t '" It has been noted that '[b]oth treaties and soft
law instruments can be vehicles for focusing consensus on rules and princi-
ples, and for mobilising a consistent, general response on the part of
States'v'f? It simply depends on given circumstances which type of instru-
ment will fulfil a more useful role. The 1992 Rio Declaration, Boyle
observes, has gained general support precisely because it was drafted in the
form of a non-binding, soft-law instrument, containing rules that partly
codify existing environmental law and new rules.
153 Boyle (above, n. 116) p. 29. 154 Ibid., pp. 31-8, as cited in Boyle, p. 28.
155 As stated by the ICJ in relation to the UN General Assembly Resolutions and intergovern-
mental declarations in, e.g., the Military and Paramilitary Activities in and against Nicaragua case
(Nicaragua v US) (Merits) Judgment of 27 June 1986 (1986) ICJ Reports 14, 98-104, paras
187-195; Legality of the Use of Nuclear Weapons, Advisory Opinion of 8 July 1996 (1996) ICJ
Reports 241,254-5, paras. 70-3; Case Concerning Gabcikovo-Nagymaros Project, (above, n. 10) p. 7.
6
15 See the very critical approach as to the possibility of sustainable development complying with
the standards of the 1969 North Sea Continental Shelf cases in relation to the formation of customary
law in V. Lowe, 'Sustainable Development and Unsustainable Arguments', in A. Boyle and
D. Freestone (eds.), International Law and Sustainable Development, Past Achievements and Future
Challenges (Oxford University Press, 1999) pp. 23-4 and 31-6.
157 Boyle (above, n. II6) p. 28.
Soft-law instruments also play a versatile role in the multilateral

treaty-making process. They may start a treaty-making process, in the
form of non-binding guidelines; they may serve as mechanisms for
authoritative interpretation or amplification of the terms of a treaty; they
may provide detailed rules and technical standards required for imple-
mentation; and they may be incorporated into the terms of a treaty by
implied reference. l s 8 For example, standard-setting in the International
Labour Organization (lLO), although it is often effected by non-binding
recommendations, is of paramount importance and encompasses a broad

range of activities ranging from the actual standard setting to supervision,
assistance and promotion.V? According to the ILO Committee on Legal
Issues, recommendations:
... have the potential to supplement existing Conventions, thus enhancing their
impact; or they may pave the way to the adoption of a new Convention through
a maturing process ... [they] can also clear the way for the ratification of existing
Conventions by promoting their principles either on an individual basis or
through a consolidation, possibly around the four strategic objectives; and they
include details that would be unwieldy in a Convention but which provide addi-
tional reference points for national law in practice. 160
Finally, it may be noted that soft law has led to the emergence, in particu-
lar in recent years, of different 'soft' procedures of dispute avoidance
mechanisms within the treaty context, which are based on assistance
rather than classical dispute resolution procedure.
Thus the legal nature of soft law, and equally its relationship with treaties,
is far from clear. In particular, the expansion in recent years of certain types
of treaties (for example, in the field of environmental protection) has given
rise to international agreements which contain not only specific obligations,
but also vague provisions of an ambiguous nature which do not impose
'hard' (absolute) obligations on States. As Boyle has explained, some treaties
may generate only principles but not rules, which do not have the strength
of hard law. Such a treaty 'may be potentially normative, but still "soft" in
character, because it articulates "principles" rather than "rules"'. They
should, however, 'not be confused with "non-binding" law'. 161 As an exam-
ple of this he gives the 1992 Convention on Climate Change, where such
principles are included in a treaty (for example Article 3 (Principles». 162
15
8
Ibid., pp. 30-1.
159 International Labour Office, Governing Body, Committee on Legal Issues and International
Labour Standards, Possible Improvements in the Standard-Setting Activities of the ILO, 277th
session, Geneva March 2000, p. 3. GB.277jLILSj2, available from the ILO website, at:
<http:jjwww.ilo.orgjpublicjenglishjstandardsjrelmjgbjdocsjgb277jindex.htm#L I LS >
160 Ibid., p. 2, para. 10. 161 Boyle (above, n. 116) p. 32.
162 Art. 3 (Principles): '[i]n their actions to achieve the objective of the Convention and to implement
its provisions, the parties shall be guided, inter alia, by the following: I. The Parties should protect the
climate system for the benefit of present and future generations of humankind, on the basis of equity
and in accordance with their common but differentiated responsibilities ... 2. The Parties should take
precautionary measures to anticipate, prevent, or minimise the causes of climate change and mitigate its
adverse effects ... 3. The Parties have a right to, and should, promote sustainable development ...
As Boyle states, the elements of Article 3 are drawn directly from the
(non-binding) Rio Declaration on Environment and Development. These
principles are not only a part of the Climate Change Convention but also
reflect principles which are emerging at the general level, common to
environmental law in general, but which have not achieved the status of
customary law. They are couched in an aspirational manner, for instance
through use of the word 'should'. Their content is not certain and pre-
cise. They are, however, 'relevant to interpretation and implementation
of the Convention as well as creating expectations relating to matters that

must be considered in good faith in the negotiation of further instru-
ments. '163 Finally, it may be said that:
[s]ustainable development, intergenerational equity, or the precautionary principle,
are all more convincing seen in this sense: not as binding obligations which must
be complied with, but as principles, considerations or objectives to be taken
account of-they may be soft, but they are still law. 164
The legal character of soft law thus remains ambiguous, especially if
considered in the context of the problem of what constitutes a binding
international obligation. This phenomenon has been analysed by polit-
ical scientists, who offer an answer to the question of how to treat legal
obligations with a varied normative content included in the same instru-
ment. The importance which States attach to international obligations is
not exclusively conditioned by the legal nature of these obligations: '[t]he
schematic distinction between those obligations that are and those that
are not legally binding does not necessarily offer insight in the constraint
obligations imposed on states'. 165 Rather, practice in this regime makes
clear that this is a much more diffuse process:
... the principle of sustainable development has induced expectations as to the
conduct of States, can be used to claim from other States that they adjust their
policies and indeed had begun to act as a de facto constraint on policy-makers.
This is no way dependent on its recent inclusion in the legally binding 1992
Helsinki and Paris Conventions. In the continuous assessments States make as
to which of the large number of prescriptions for preventive action are import-
ant and are complied with, the legal nature is only one of the relevant factors.
The relevance of the legal nature cannot be taken for granted and can only be
assessed on a case by case basis. I 66
Finally, it has been rightly observed that soft law:
may be used deliberately solely to steer conduct in a desired direction to achieve
generalized 'soft law' rather than 'hard' goals, and this may in given cases be
more effective over a long term, especially in the case of developing states.
This is the case in situations where there are uncertainties of a scientific,
16 16
Boyle (above, n. 116) p. 33.
3 4 Ibid., especially p. 34.
16
A. Nollkaemper, The Legal Regime for Transboundary Water Pollution: Between Discretion and
5
Constraint (Kluwer Law International, 1993) p. 25 2. 166 Ibid.
technological, economic or social nature, but when some immediate change of

behaviour is required.i''?
In the view of the present author, the nature of so-called 'soft law' has not
been fully explored. In particular, there is a confusion between completely
non-binding declarations (such as the Baltic Sea Declaration) and soft pro-
visions of binding treaties (such as the above cited 1992 Climate Change
Convention) that according to Boyle contain 'soft' principles that are non-
binding obligations but nevertheless are aspirational and constitute law at
least to a certain degree. If we take up this distinction further, there appear

to be three types of possible situations: non-binding instruments; binding
law; 'soft' but potentially normative principles contained in treaties that
constitute, nevertheless, some law. According to Lowe:
the real differences between hard law and soft law lie in the processes by which
the rule is articulated and in the consequences of its breach. The essential
natures of the normativity of hard law and of soft law are not different ... The
distinction between 'hard' law and 'soft' law is not great. In terms of strength of
the expectations of compliance, there is no necessary distinction between the
categories of 'hard' and 'soft' law, though there are, of course, great differences
in relation to the various norms within each category. 168
The present author agrees with the view expressed above that one of the
most important legal problems concerning 'soft' law are the legal conse-
quences of non-compliance with 'soft' law provisions (or principles). Again
we have to differentiate between 'soft' law sensu stricto and the 'soft' prin-
ciples contained in treaties. In the first case, there is a theoretical, yet
completely unexplored and never tested, possibility of invoking the prin-
ciple of estoppel.
What are the legal consequences, however, of non-compliance with a
'soft' principle contained in a treaty? The question arises as to whether
such non-compliance is to be treated as a breach of an international obli-
gation (a breach of a treaty rule), or whether there are some other
(unspecified) legal consequences attached to a breach of such a 'soft'
principle contained in a treaty, which differ from general rules applicable
in instances of a breach of 'hard' obligation?
In the view of the present author, attaching any legal consequences
(including the principle of estoppel) to non-binding provisions is incor-
rect. Non-binding instruments have no legal effects and therefore their
breach is without legal consequences. The breach of a treaty provision of
a 'soft' character should be treated as a breach of a legal obligation, thus
resulting in the possibility of the invocation by an injured State of rules
of State responsibility.
16
7 P. Birnie, 'The Status of Environmental "Soft Law": Trends and Examples with Special
Focus on IMO Norms', in H. Ringbom (ed.), Competing Norms in the Law of Marine Environmental
Protection, Focus on Ship Safety and Pollution Prevention (Kluwer Law International, 1997) p. 39.
168 Lowe, in A. Boyle and D. Freestone (eds.) (above, n. 156) p. 30.
But there is yet another complication, namely that the wording of the
provision in question has to be taken into account in determining
the content of the obligation. 'Soft' provisions could only serve as guid-
ance for the parties and employ the word 'should' (for example, 'should
strive to'); or they could be couched in more imperative terms demand-
ing concrete action, which nevertheless remain weak as to the scope and
the nature of the obligation. For example, Article 4, paragraph 4(b) of
the 1992 Climate Change Convention states the following: '[p]arties shall
communicate information on their policies and measures to review green

house emissions with the aim of returning individually or jointly to their
1990 emissions levels'. Although this provision uses the word 'shall', the
only real obligation contained in this provision is to provide information
on measures adopted by the Party. Admittedly, States are not likely to lit-
igate exclusively on the basis of a breach of a provision of such a general
and 'soft' character. The present author agrees with Boyle that 'soft' rules
contained in treaties, however, may lay down parameters that affect the
way the Court decides.i''?
IV CONCLUSIONS
This essay started with the definition of a treaty under the VCLT and
then proceeded to examine different legal phenomena that might or
might not be treaties. One conclusion is clear-the VCLT does not
encompass all possible varieties of contemporary law-making. Some of
the current developments such as soft law do not lend themselves to easy
classification. Some soft-law documents, as illustrated above, may look
like treaties, from the point of view of their content, and they may be
even signed by the governments: as pointed out above, the 1988
Ministerial Declaration that covered the Baltic Sea was 'ratified' by the
Parliament of the Federal Republic of Germany. This resulted in a situ-
ation where a soft-law instrument was enacted as a hard-law instrument
at the municipal level, but remained soft at the international level. The
Declaration was even treated as hard by the FRG at both levels.
The case law of the International Court has focused mainly on the ques-
tion of what constitutes a compromis, an agreement to submit the case to
the Court's jurisdiction. It is in the Qatar/Bahrain case that the Court
made important statements as to the nature of treaty obligation and the
minimal relevance of the intention of the parties. The findings of the
Court in this case ' ... serve only to blur further the grey twilight zone
between binding and non-binding international agreements'. 170 As
observed elsewhere in this essay, the Court's decision may lead to the con-
clusion that a non-binding instrument may contain binding obligations.
16
9 Boyle (above n. 116) p. 32. 17° Chinkin (above, n. 8) p. 247.
Conversely, as it is sometimes asserted, a binding instrument may contain

non-binding obligations. Therefore, due to this variety of legal forms of
international co-operation, defining what is a treaty only according to the
VCLT is a daunting task. It therefore appears that it is up to interna-
tional courts and tribunals to decide in each and every case the nature and
the scope of an obligation. Further difficulty is caused by the fact that in
contemporary international relations, a clear division between the formal
sources of obligations for States cannot be always upheld, at least in rela-
tion to treaties, soft law and unilateral acts (as evidenced already in 1933

by the classic Eastern Greenland case).

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THE IDENTIFICATION AND CHARACTER OF TREATIES

AND TREATY OBLIGATIONS BETWEEN STATES IN

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an international agreement concluded between States in written form and gov-

"" © Malgosia Fitzmaurice, 2003.

to be legally binding at all but which have a certain political or moral

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2 Binding Agreements in Legal Systems-General Remarks

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(b) Absence in international law of tools for analysis of

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(c) Particular characteristics of the international legal system

binding, either through their influence on the formation of customary

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II THE DEFINITION OF TREATY IN THE VIENNA CONVENTION

I Meaning of a 'Legal Obligation' according to the ILC

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to confuse the question of classifying international agreements', adding

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3 'In Written Form'

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4 The Particular Form of a Treaty

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a treaty or not, the nature of the act or transaction must be determined

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jurisdiction. This case also illustrates the importance of the interpreta-

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39 Ibid., p. 7 1 . 4° Ibid., pp. 72-3. 4

appears to be reflected also in Mr Ihlen's minute of the interview. Even if this

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the Ihlen Declaration as a unilateral statement of a purely verbal nature.

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5 'Concluded Between States'

However, in 1962, the Commission confirmed its decision to defer exam-

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The scope of application was, however, never clearly specified.

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(b) Agreements between States and non-state entities and individuals

53 S. Rosenne, Developments in the Law of Treaties I945-I986 (Cambridge University Press,

or facts relating directly or indirectly to the application of treaties or

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5° Ibid., 1 12. 57 Ibid.

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Special Rapporteurs used various formulations to reflect this element.v'

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accord to this document binding force. The Court emphasized, however,

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to international law. 78 Its Article lea) (Use of the Term 'Treaty')

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III INFORMAL ARRANGEMENTS AND 'SOFT LAW'

I Preliminary Considerations: The Role of the Intention of the Parties

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82 H. Lauterpacht, 'Restrictive Interpretation and the Principle of Effectiveness of Treaties',

a position subsequently to say that he intended to subscribe only to a 'statement

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formality, fall short of what is generally considered as constituting a

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On the other hand, an issue raised by Klabbers relates to the possibil-

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